CHERI ANNE MILLER v. DAVID CHARLES CHRISTIANSEN
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RENDERED:
December 31, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002023-MR
CHERI ANNE MILLER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 96-CI-03187
v.
DAVID CHARLES CHRISTIANSEN
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Cheri Anne Miller has appealed from an order of
the Fayette Circuit Court entered on August 17, 2001, which
denied her motion to relocate her minor children to California.
Having concluded, in light of the Supreme Court of Kentucky’s
recent decision in Fenwick v. Fenwick,1 that the trial court did
not apply the appropriate standard in ruling on Miller’s motion
to relocate, we vacate and remand for further proceedings.
1
Ky., 114 S.W.3d 767 (2003).
Miller and David Charles Christiansen were married on
February 12, 1986.
Two children were born of this marriage,
Elizabeth Christiansen, born on November 11, 1990, and Melissa
Christiansen, born on August 8, 1992.
On July 19, 1999, a
decree of dissolution of marriage was entered by the Fayette
Circuit Court, dissolving the marriage of Miller and
Christiansen.
The trial court incorporated the parties’
property settlement agreement into the divorce decree, which
provided, inter alia, that Miller and Christiansen would have
joint custody of their children, and that Miller would be the
primary residential parent.
In addition, the agreement provided
that Miller “shall not relocate the children’s residence outside
of Fayette County or its contiguous counties without approval by
the Fayette Circuit Court.”2
On July 9, 2001, Miller filed a motion asking the
trial court to approve her relocating to California with the two
children.
Among the reasons for her desire to move to
California, Miller cited an opportunity to obtain a higher
paying job and a chance to be closer to her family.
On August
6, 2001, Christiansen filed a response objecting to Miller’s
motion to relocate, and filed his own motion to modify the
parties’ custody agreement.
Christiansen asked the trial court
2
The property settlement agreement did not provide any standards for the
trial court to follow in deciding whether to approve a proposed relocation by
Miller.
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to modify the parties’ custody agreement by designating him as
the primary residential parent.
held on August 9, 2001.
A hearing on this matter was
On August 17, 2001, the trial court
entered an order denying Miller’s motion to relocate, finding
that “it is in the best interest of the children to remain in
Lexington, Kentucky.”
The trial court further stated that it
would consider designating Christiansen as the primary
residential parent if Miller insisted on relocating to
California.
This appeal followed.3
Miller argues that the trial court did not apply the
appropriate standard in considering her motion to relocate.
agree.
We
In Fenwick, our Supreme Court explained the test for
trial courts to follow when considering a primary residential
parent’s motion to relocate:
[A] non-primary residential custodian parent
who objects to the relocation can only
prevent the relocation by being named the
sole or primary residential custodian, and
to accomplish this re-designation would
require a modification of the prior custody
award.
. . .
To sum up, when a primary residential
custodian gives notice of his or her intent
3
On July 5, 2002, we ordered that this appeal be held in abeyance pending a
final determination by the Supreme Court in Fenwick v. Fenwick (2000-SC000697) and Huck v. Huck (1999-SC-001055). The Supreme Court considered
Fenwick and Huck in a consolidated appeal, and rendered a final determination
in both cases on September 18, 2003. We allowed Miller and Christiansen to
file supplemental briefs addressing the impact of Fenwick on the case at bar.
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to relocate with the parties’ child, the
burden is then upon any party objecting to
file a custody modification motion within a
reasonable time and after that, to satisfy
the modification standard of KRS4 403.340 in
order to change the designation of primary
residential custodian.5
Hence, a primary residential parent’s decision to
relocate is presumptively permissible.6
In order to prevent the
children from being relocated along with the primary residential
parent, the parent objecting to the relocation must “satisfy the
modification standard of KRS 403.3407 in order to change the
designation of primary residential custodian.”
4
Kentucky Revised Statutes.
5
Fenwick, 114 S.W.3d at 786.
6
Id. at 785.
7
As amended on March 21, 2001, KRS 403.340 states, in pertinent part, as
follows:
(2) No motion to modify a custody decree shall be
made earlier than two (2) years after its date,
unless the court permits it to be made on the basis
of affidavits that there is reason to believe that:
(a) The child's present environment may
endanger seriously his physical, mental,
moral, or emotional health; or
(b) The custodian appointed under the
prior decree has placed the child with a
de facto custodian.
(3) If a court of this state has jurisdiction
pursuant to the Uniform Child Custody Jurisdiction
Act, the court shall not modify a prior custody
decree unless after hearing 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
interests of the child. When determining if a change
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has occurred and whether a modification of custody is
in the best interests of the child, the court shall
consider the following:
(a) Whether the custodian agrees to the
modification;
(b) Whether the child has been integrated
into the family of the petitioner with
consent of the custodian;
(c) The factors set forth in KRS
403.270(2) to determine the best
interests of the child;
(d) Whether the child's present
environment endangers seriously his
physical, mental, moral, or emotional
health;
(e) Whether the harm likely to be caused
by a change of environment is outweighed
by its advantages to him; and
(f) Whether the custodian has placed the
child with a de facto custodian.
(4) In determining whether a child's present
environment may endanger seriously his physical,
mental, moral, or emotional health, the court shall
consider all relevant factors, including, but not
limited to:
(a) The interaction and interrelationship
of the child with his parent or parents,
his de facto custodian, his siblings, and
any other person who may significantly
affect the child's best interests;
(b) The mental and physical health
of all individuals involved;
(c) Repeated or substantial failure,
without good cause as specified in KRS
403.240, of either parent to observe
visitation, child support, or other
provisions of the decree which affect the
child, except that modification of
custody orders shall not be made solely
on the basis of failure to comply with
visitation or child support provisions,
or on the basis of which parent is more
likely to allow visitation or pay child
support;
(d) If domestic violence and abuse, as
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Our review of the trial court’s order denying Miller’s
motion to relocate shows that the above standard was not
applied.
In its order denying Miller’s motion, the trial court
stated in part as follows:
In sum, the Court feels it is in the best
interest of the children to remain in
Lexington, Kentucky. If [Miller] still
wishes to relocate to California the Court
will consider granting [Christiansen]
residential custody.
Clearly, the trial court did not consider Miller’s motion to
relocate within the framework of KRS 403.340.
The trial court
did not determine whether Christiansen had met his burden to
warrant a modification in the custody agreement.
Indeed, the
trial court did not consider Christiansen’s motion to modify
custody at all.
Accordingly, the trial court’s order denying
Miller’s motion to relocate is vacated, and this matter is
remanded with directions to consider Miller’s motion to relocate
in light of Fenwick and KRS 403.340.
Finally, we note that when a trial court considers a
primary residential parent’s motion to relocate and the
objecting parent’s motion to modify custody, the test as
announced in Fenwick requires the trial court to consider
numerous factors set forth in KRS 403.340.
Therefore, on
defined in KRS 403.720, is found by the
court to exist, the extent to which the
domestic violence and abuse has affected
the child and the child's relationship to
both parents.
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remand, the trial court should make specific factual findings to
show the basis for its decision in order to facilitate
meaningful review on appeal.8
Based on the foregoing, the order of the Fayette
Circuit Court is vacated and this matter is remanded for further
proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Vicki L. Buba
Louisville, Kentucky
Martha A. Rosenberg
Lexington, Kentucky
W. Stokes Harris, Jr.
Lexington, Kentucky
8
See Kentucky Rules of Civil Procedure 52.01; and Reichle v. Reichle, Ky.,
719 S.W.2d 442, 444 (1986)(holding that one of the principal reasons for
requiring specific factual findings “is to have the record show the basis of
the trial judge's decision so that a reviewing court may readily understand
the trial court's view of the controversy”).
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