KAREN HUNINGHAKE BUNDY v. BOBBY LEE BUNDY
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RENDERED:
DECEMBER 7, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002602-MR
KAREN HUNINGHAKE BUNDY
(NOW DANIELS)
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 88-CI-00037
v.
BOBBY LEE BUNDY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND McANULTY, JUDGES.
KNOPF, JUDGE:
Karen Daniels (formerly Bundy) appeals from an
order of the Campbell Circuit Court, entered October 5, 2000,
switching custody of Karen’s then sixteen-year-old daughter,
Jessica, from Karen to Bobby Lee Bundy, Jessica’s father and the
appellee herein.
Karen contends that the trial court’s findings
do not support its conclusion that, for the purposes of KRS
403.340, Jessica has been integrated into Bobby’s family.
agree.
We
We are obliged, consequently, to reverse and remand.
Karen and Bobby married in November 1979.
Three
children were born to them: two sons, born in December 1980 and
February 1982, and a daughter, Jessica, born in August 1984.
Bobby petitioned for dissolution of the marriage in January 1988.
As part of the dissolution decree, entered December 1, 1988,
Karen was awarded custody of the children subject to Bobby’s
visitation rights.
The decree accorded Bobby about five-and-a-
half days’ visitation every two weeks.
When Bobby moved to Ohio
about a year later, the parties’ visitation schedule became
somewhat inconvenient.
To accommodate Bobby’s visitation, Karen
consented to his keeping the children an extra day or two each
two-week period.
The parties thus cared for and enjoyed the
companionship of the children on a roughly even basis.
This
arrangement continued when Bobby returned to Kentucky.
The statute at issue, KRS 403.340, which has been held
to establish standards for the modification of all Kentucky
custody decrees,1 provides in pertinent part that the trial court
shall not modify a prior custody decree
unless it finds, upon the basis of facts that
have arisen since the prior decree or that
were unknown to the court at the time of
entry of the prior decree, that a change has
occurred in the circumstances of the child or
his custodian, and that the modification is
necessary to serve the best interest of the
child. In applying these standards, the
court shall retain the custodian appointed
pursuant to the prior decree unless:
(a) The custodian agrees to the modification;
(b) The child has been integrated into the
family of the petitioner with the consent of
the custodian; or
(c) The child’s present environment endangers
seriously his physical, mental, moral, or
emotional health, and the harm likely to be
caused by a change of environment is
outweighed by its advantages to him . . . .
1
Quisenberry v. Quisenberry, Ky., 785 S.W.2d 485 (1990).
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Bobby first petitioned for a change of custody under
this statute in September 1995.
He urged the court to make
formal the parties’ informal arrangement and to change the award
from sole to joint custody.
Referring implicitly to KRS
403.340(2)(c), the circuit court summarily denied the motion.
“Petitioner has failed,” the court stated, “to present sufficient
facts by way of affidavit to indicate that the present
environment of the children seriously endangers their physical,
mental or emotional health.”
In February 2000, Bobby renewed his motion, this time
alleging that the second son, then newly turned eighteen, had
moved in with him and that Jessica, who already lived with him
half the time, wished to move as well.
The trial court granted
the motion with respect to the son, but again denied it with
respect to Jessica.
“The requirements of KRS 403.340(2) have not
been met,” the trial court ruled, in that petitioner “has failed
to allege facts which indicate that her [Jessica’s] present
environment seriously endangers her physical, mental, moral or
emotional health.”
Bobby moved, thereupon, for the court to
reconsider its order, and attached to his motion letters from his
sons voting, in effect, for him.
On June 1, 2000, the court
vacated its prior order, without explanation, and referred the
matter of Jessica’s custody to a commissioner.
Following a hearing, the commissioner found that, by
virtue of Karen’s having consented, several years before, to
Jessica’s visiting Bobby a day or two every two weeks more than
the decree provided, Jessica had become “integrated” into Bobby’s
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family for the purposes of KRS 403.340(2)(b) and that the decree
could therefore be modified to award Jessica’s sole custody to
Bobby, Karen limited to visitation on alternate weekends.
The commissioner candidly explained that he based his
recommendation on Jessica’s testimony before the parties’
attorneys and upon her remarks to him in camera.
It seems that
for several reasons Jessica had come to prefer living at Bobby’s
home.
The attractions there, aside from Bobby himself, included
Bobby’s wife, with whom Jessica had developed a close
relationship; Jessica’s brothers, who apparently had moved in
with Bobby; and several pets.
On the other hand, Jessica
expressed resentment about Karen’s seeming to devote so much of
her attention to Jessica’s six-year-old half-brother, and
impatience with having her things divided between two places.
The trial court concurred in both parts of the commissioner’s
report: it agreed that Bobby had overcome KRS 403.340's
presumption against modification of custody orders by showing
that Jessica had become integrated into his family, and it agreed
that the recommended modification comported with Jessica’s best
interest.
It is from this ruling that Karen has appealed.
She
argues that the trial court clearly erred in that it misconstrued
the formidable threshold finding required by KRS 403.340(2)
before a custody award may be modified.
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Reluctantly, we agree.
In Quisenberry v. Quisenberry2 and Wilson v.
Messinger,3 our Supreme Court endorsed the idea that the
provisions of KRS 403.340(2) “intend to inhibit further
litigation initiated simply because the noncustodial parent, or
the child, or both, believe that a change in custody would be in
the child’s best interest.”4
The purpose of KRS 403.340(2), said
the Court in Quisenberry, “is to provide stability and finality
to a custody decree.”5
Given this purpose, our Supreme Court has
upheld the trial court’s refusal to consider modification where a
fourteen-year-old expressed a desire to live with the
noncustodian,6 and where the custodian intended to move away from
Kentucky but the child wished to stay.7
While it is true that these cases were directly
concerned with subsection (c) of KRS 403.340(2), the subsection
permitting a reconsideration of custody if the existing regime
seriously endangers the child, their holdings apply to subsection
(b) as well.
The goal of finality would be oddly and
inconsistently served if subsection (c) established a high
threshold around the right to modification, but subsection (b) a
2
supra,
3
Ky., 840 S.W.2d 203 (1992).
4
Id. at 204 (internal quotation marks and citations omitted).
5
785 S.W.2d at 488 (citations and internal quotation marks omitted).
6
Quisenberry, supra.
7
Wilson, supra. See also Wilcher v. Wilcher, Ky. App., 566 S.W.2d 173, 175 (1978)
(“KRS 403.340 reflects a strong legislative policy to maximize the finality of custody decrees
without jeopardizing the health and welfare of the child. The statute creates a presumption that
the present custodian is entitled to continue as the child's custodian.”).
-5-
low one.
As we read these precedents, therefore, under either
subsection, absent a truly compelling reason to revisit an
existing custody arrangement, that arrangement is not to be
disturbed.
Such a reason was found under subsection (b) in Carnes
v. Carnes.8
In that case, soon after entry of the decree the
custodian found herself temporarily unable to care for her child.
She left the child with the noncustodian and about six months
later, having reordered her life, sought to resume custody.
The
noncustodian objected, and the trial court ruled that custody
should be switched.
Although for apparently good reasons, the
initial custodian had abdicated her responsibilities under the
original decree with the result that the child had become
integrated within the noncustodian’s family.
At that point, the
goals of finality and stability could best be served by
recognizing in a modified decree the de facto status quo.
This
result, our Supreme Court held, comported with subsection (b).
Carnes thus illustrates some typical features of a
modification under that subsection.
First, the custodian
relinquished both her rights and responsibilities under the
original decree and someone else assumed the responsibilities.
That state of affair continued for a significant length of time.
And finally the court found that what had begun as an ad hoc
arrangement was working well for the child so that the child’s
interest in stability would be served by formally adopting it.
8
Ky., 704 S.W.2d 207 (1986).
-6-
In the present case, although Karen’s consent to
Bobby’s slightly increased visitation with Jessica is now of long
standing, the other elements are missing.
Indeed, it would be a
travesty to characterize Karen’s consent as in any sense an
abdication of her responsibilities under the decree.
On the
contrary, she testified, without contradiction, that she
consented to the adjustment in the visitation schedule to
accommodate Bobby and to ensure that he and Jessica maintained
their relationship.
This is precisely the cooperation one hopes
to see between divorced parents.
To hold that Karen had thus
jeopardized her rights would be unreasonable.
Also missing from
this situation, unlike the one in Carnes, was a de facto
stability the modified decree could be said to preserve.
Here,
instead, the trial court invoked subsection (b) in order to
overhaul a custody arrangement that had worked reasonably well
for a long time, upsetting rather than furthering the stability
that subsection (b) has been held to protect.
In sum, although we sympathize with the parties and
with Jessica, we are constrained to conclude that the trial court
erred.
As that court ruled initially, Bobby did not satisfy the
threshold requirements under KRS 403.340 for a modification of
custody.
The modification, therefore, was improper,
notwithstanding the fact that the modified arrangement might well
have served Jessica’s best interest.
be so.9
Perhaps the law should not
Certainly there is tension between the rule of KRS
403.340(2) as it has evolved and the broad discretion accorded
9
See the dissenting opinions in Quisenberry and Wilson.
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trial courts with respect to other domestic matters.
Nevertheless, until the General Assembly or our Supreme Court
tells us otherwise, we, and the trial court, are obliged to
adhere to the law as it has come to be.
We trust the parties,
whose mutual concern for their children is apparent, to fashion
a living arrangement responsive to Jessica’s maturing desires as
well as to her abiding needs.
For the reasons stated, we reverse the October 5, 2000,
order of the Campbell Circuit Court and remand for additional
proceedings consistent herewith.
BUCKINGHAM, JUDGE, CONCURS IN RESULT.
McANULTY, JUDGE, CONCURS.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Shannon O’Connell Egan
Richard A. Cullison
Northern Kentucky Legal Aid
Society, Inc.
Covington, Kentucky
James W. Morgan, Jr.
Morgan, Hazen & Galbreath
Newport, Kentucky
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