MICHAEL PATRICK DIER v. LAURA SAMPLES
Annotate this Case
Download PDF
RENDERED:
December 31, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002317-MR
MICHAEL PATRICK DIER
v.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NOS. 97-CI-00034 AND 97-CI-00976
LAURA SAMPLES
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE, BUCKINGHAM AND BARBER, JUDGES.
BUCKINGHAM, JUDGE:
Michael Patrick Dier appeals from an order
of the Floyd Circuit Court, entered September 4, 2002, that
awarded his ex-wife, Laura Samples, custody of the parties’
minor daughter, Samantha.
The trial court entered this order
modifying custody of Samantha after determining that Dier and
Samples had orally modified a custody order, entered August 9,
1999, that had granted custody of Samantha to Dier.
After
reviewing the record, the arguments presented by the parties
herein, and the applicable law, we reverse the trial court’s
order of September 4, 2002, and remand this matter for further
proceedings.
During the weekend of May 10, 2002, through May 12,
2002, Samples, her sister, and her boyfriend exercised
visitation with Samantha at a motel1.
During this visit, Samples
discovered that Samantha’s hair was infested with lice.
Samples
then contacted the offices of child protective services and
informed the on-call social worker that Samantha had been
infested with head lice and that Dier had refused to treat her
for this condition.
Samples also told the on-call worker that
she believed Dier had recently abused Samantha.
Social worker
Paula Ratliff was dispatched to investigate the allegations.
On May 11, 2002, Ratliff interviewed Samples, Dier,
and Samantha at the offices of the Department for Community
Based Services in Paintsville, Kentucky.
During these
interviews, Samantha told Ratliff that Dier had choked her and
had picked her up by her neck on one occasion.
Samantha further
asserted that she was afraid of her father and did not want to
return to his custody.
After speaking with Samantha, Ratliff
explained to Dier that, if Samantha remained in his custody, she
would open a child protection case to monitor this situation,
file a juvenile petition in the Johnson District Court, and
1
At all times material and relevant to these proceedings, Samples was a
resident of Ohio.
-2-
insist that Samantha speak with a mental health expert to
determine if she had been emotionally or mentally abused while
in his custody.
At this point, Dier, in the presence of Ratliff,
Samples, and Paintsville Police Officer Danny Smith, asked
Samantha if she wanted to live with her mother in Ohio.
Samantha informed her father that she wished to do so.
According to testimony from Samples, Officer Smith, and Ratliff,
Dier agreed to allow Samantha to live with her mother by
informing Samantha to “pack your stuff and you can go.”
After
this agreement was reached, Dier returned to his residence to
obtain Samantha’s clothes and personal belongings.
While Dier was obtaining Samantha’s belongings,
Ratliff drafted a document that read as follows:
Michael Dier told his daughter Samantha Dier
to pack her bags and go live with her
mother, Laura M. Samples. Mr. Michael Dier
stated that his daughter, Samantha Dier
could return to Ohio with her mother to live
with her at her residence.
Upon Dier’s return from his residence, Ratliff,
Officer Smith, Samples, and another Paintsville police officer
signed this document to memorialize their understanding of the
agreement reached between Dier and Samples.
Ratliff then
presented the document to Dier, who, after consulting with his
attorney, refused to sign it.
Despite his refusal to execute
-3-
Ratliff’s handwritten document, Dier, who now asserts that he
believed Samantha would stay with Samples only for the summer,
allowed Samantha to leave Kentucky and go to Ohio with Samples2.
Despite the manner in which Samantha left Kentucky,
Dier and Samantha maintained telephone contact throughout the
summer.
During these telephone conversations, Dier informed
Samantha that she would have to return to Kentucky at the end of
the summer so that she could return to school.
When the summer
ended, however, Samples, without making any motion to modify the
1999 custody order, refused to return Samantha to Dier’s
custody.
In response, Dier filed a Verified Motion for
Immediate Possession of Minor Child and Motion to Reconsider
Order Withholding Enforcement of Child Support Obligation with
the Floyd Circuit Court.
After holding a two-day hearing concerning Dier’s
motions, the trial court held that Samantha would remain in her
mother’s custody.
In making this finding, the trial court
determined that Dier and Samples had orally modified the
original child custody agreement.
Dier’s timely filed motion to
alter, amend, or vacate the order was denied by the trial court.
This appeal followed.
On appeal, Dier argues that the trial court erred by
failing to enforce the August 1999 custody order in the absence
2
The parties’ other child, Michael, was not subject to this agreement and
remained in Dier’s custody.
-4-
of any motion by Samples to change or modify custody.
We are
compelled to agree.
In reviewing a child custody determination, the
standard of review is whether the factual findings of the trial
court are clearly erroneous.
CR3 52.01; Reichle v. Reichle, Ky.,
719 S.W.2d 442, 444 (1986). Findings of fact are clearly
erroneous if they are manifestly against the weight of the
evidence.
Wells v. Wells, Ky., 412 S.W.2d 568, 570 (1967).
Since the trial court is in the best position to evaluate the
testimony and to weigh the evidence, an appellate court should
not substitute its own opinion for that of the trial court.
Reichle, 719 S.W.2d 442. Ultimately, a trial court's decision
regarding custody will not be disturbed absent an abuse of
discretion.
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
Abuse of discretion implies that the trial court's decision is
unreasonable or unfair.
Kuprion v. Fitzgerald, Ky., 888 S.W.2d
679, 684 (1994). In reviewing the decision of the trial court,
therefore, the test is not whether the appellate court would
have decided it differently, but whether the findings of the
trial judge were clearly erroneous or that he abused his
discretion.
3
Cherry, 634 S.W.2d 423.
Kentucky Rules of Civil Procedure.
-5-
Any modification of child custody is subject to the
custody modification statutes contained in KRS4 Chapter 403.
403.340(2) states:
No motion to modify a
shall be made earlier
years after its date,
permits it to be made
affidavits that there
believe that:
custody decree
than two (2)
unless the court
on the basis of
is reason to
(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.
Additionally, KRS 403.350 requires:
A party seeking a temporary custody order or
modification of a custody decree shall
submit together with his moving papers an
affidavit setting forth facts supporting the
requested order or modification and shall
give notice, together with a copy of his
affidavit, to other parties to the
proceeding, who may file opposing
affidavits. If a court determines that a
child is in the custody of a de facto
custodian, the court shall make the de facto
custodian a party to the proceeding. The
court shall deny the motion unless it finds
that adequate cause for hearing the motion
is established by the affidavits, in which
case it shall set a date for hearing on an
order to show cause why the requested order
or modification should not be granted.
4
Kentucky Revised Statutes.
-6-
KRS
In interpreting these statutes, the Kentucky Supreme
Court held that a motion to modify a prior custody decree must
be accompanied by at least one affidavit, and if the motion is
made earlier than two years after its date, it must be
accompanied by at least two affidavits.
S.W.2d 786 (1999).
Petrey v Cain, Ky., 987
If the motion and supporting affidavits are
not filed, the trial court cannot exercise subject matter
jurisdiction and subsequently modify a custody agreement.
Id.
Here, it is undisputed that Samples never filed a
motion to modify custody or any affidavits supporting any such
motion.
Since Samples filed no motion or affidavits with the
trial court to modify the 1999 custody order, the trial court
had no issues to consider concerning the custody of Samantha
except for Dier’s motion for immediate possession of his
daughter.
Given the absence of any motion to modify custody,
the trial court effectively modified custody of Samantha on its
own motion.
Kentucky law prohibits a trial court from modifying a
custody order on its own when neither the child’s mother nor
father brings a motion to modify the court’s previous custody
order.
Chandler v. Chandler, Ky., 535 S.W.2d 71 (1975).
Accordingly, Dier correctly asserts that the Floyd Circuit Court
did not possess any legal authority to transfer custody of
Samantha from him to Samples.
Therefore, the trial court’s
-7-
September 4, 2002, order granting custody of Samantha to Samples
must be reversed and the matter remanded to the Floyd Circuit
Court with directions that it grant Dier’s motion.
In the
absence of a motion by Samples to modify custody or in the
absence of a custody order to the contrary, Dier was entitled to
the possession of his child.
Our review of the record has also brought another
issue to our attention.
Even if Samples properly filed a motion
to modify custody with the trial court, the September 4, 2002,
order is deficient.
When deciding issues concerning the
modification of child custody, the trial court is required to
consider the factors listed in KRS 403.340(3). KRS 403.340(3)
provides in part as follows:
[T]he 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 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;
-8-
(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.
The best interests of the child standard are codified
in KRS 403.270(2). This statute states in pertinent part:
The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be given
to each parent and to any de facto
custodian. The court shall consider all
relevant factors including:
(a)
The wishes of the child's parent or
parents, and any de facto custodian, as
to his custody;
(b)
The wishes of the child as to his
custodian;
(c)
The interaction and interrelationship
of the child with his parent or
parents, his siblings, and any other
person who may significantly affect the
child's best interests;
(d)
The child's adjustment to his home,
school, and community;
(e)
The mental and physical health of all
individuals involved;
-9-
(f)
Information, records, and evidence of
domestic violence as defined in KRS
403.720;
(g)
The extent to which the child has been
cared for, nurtured, and supported by
any de facto custodian;
(h)
The intent of the parent or parents in
placing the child with a de facto
custodian; and
(i)
The circumstances under which the child
was placed or allowed to remain in the
custody of a de facto custodian,
including whether the parent now
seeking custody was previously
prevented from doing so as a result of
domestic violence as defined in KRS
403.720 and whether the child was
placed with a de facto custodian to
allow the parent now seeking custody to
seek employment, work, or attend
school.
In its September 4, 2002, order, the trial court
determined that the sole issue before it was whether these
parties entered into an oral modification of the 1999 child
custody order.
After considering the evidence presented during
the August 2002 hearings, the trial court found that the parties
herein orally modified the 1999 custody order because “there is
clear and convincing evidence that the Petitioner in fact told
his daughter that she could reside wither mother.”
The trial
court never determined on the record whether any modification of
custody was in Samantha’s best interests.
Accordingly, the
trial court abused its discretion by modifying custody over
-10-
Samantha without applying or considering the standards listed in
KRS 403.340(3) and KRS 403.270(2).
Therefore, the trial court’s
September 4, 2002, order has no support under Kentucky law
because “[a] prior custody decree may not be modified absent a
finding of changed circumstances that necessitate the
modification.”
Holt v. Chenault, Ky., 722 S.W.2d 897, 899
(1987).
Dier also contends that the trial court erred in
staying the enforcement of an order directing Samples to pay him
child support.
On March 2, 2001, the court ordered that all
motions for child support, health insurance, and contempt for
failure to pay child support be held in abeyance until the
original appeal was final.
According to Samples, that appeal
became final when the Kentucky Supreme Court denied her motion
for discretionary review on May 15, 2003.
“[E]ach installment of child support becomes a lump
sum judgment, unchangeable by the trial court when it becomes
due and is unpaid.”
(1982).
Stewart v. Raikes, Ky., 627 S.W.2d 586, 589
As such, we know of no reason why Dier could not compel
Samples to comply with the child support order.
Further, we
know of no authority that would permit the court to thwart
Dier’s efforts to force Samples’ compliance with her child
support obligation, and Samples has not cited us to any such
authority.
Thus, we conclude that the court also erred in this
-11-
regard, and we reverse and remand with directions to the court
to enter an order lifting its prior order staying enforcement of
the prior child support order.
For the aforementioned reasons, the September 4, 2002
order of the Floyd Circuit Court is reversed, and this matter is
remanded to that court for further proceedings consistent with
this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Clyde F. Johnson
Prestonsburg, Kentucky
John Harlan Callis, III
Prestonsburg, Kentucky
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
