LYNN M. GARNER v. DAVID M. GARNER
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RENDERED: JULY 23, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2001-CA-001833-MR
LYNN M. GARNER
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 96-CI-00531
v.
DAVID M. GARNER
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, SCHRODER, AND VANMETER, JUDGES.
VANMETER, JUDGE:
This is an appeal from a postdissolution order
entered by the Campbell Circuit Court after this court remanded
an earlier joint custody modification order to the trial court
for reconsideration.
On remand, the trial court granted
appellee David M. Garner’s motion to modify joint custody and to
designate him as the primary residential custodian of the
parties’ daughter.
For the reasons stated hereafter, we vacate
and remand for further proceedings.
The parties married in 1983 and divorced in October
1996 in Campbell County.
As their son is now an adult, this
appeal pertains only to their daughter, Lila, who was born in
1994.
Pursuant to the shared parenting plan which was
incorporated into the parties’ decree of dissolution, appellant
Lynn Garner was designated as the children’s primary residential
custodian.
Apparently matters concerning the children proceeded
without incident until Lynn advised David in May 1998 that she
intended to relocate with the children to Wisconsin in order to
be closer to her ill father and her fiancé.
On June 1, 1998,
David filed a motion requesting the circuit court to modify
custody in order to designate him as the primary residential
custodian.
The court appointed a guardian ad litem (GAL).
A
court-ordered evaluation indicated that both parties had
excellent parenting and coparenting skills.
By agreement, a
second evaluation was conducted several months later after Lila
spent alternating three-week periods in Wisconsin and Kentucky.
At that time the evaluator spoke highly of the parties’
cooperation and parenting skills, but recommended that Lynn
should not relocate to Wisconsin.
The domestic relations
commissioner (DRC) subsequently conducted a hearing and
2
concluded that although it was in Lila’s best interest for joint
custody to continue, she should reside primarily with David.
Meanwhile, a more complete custody evaluation was
conducted.
Again, the evaluator highly praised both parties and
opined that although joint custody would continue to work well,
David should be named Lila’s primary residential custodian.
The
DRC conducted another hearing and filed a report concluding that
Lynn had violated the parties’ agreement and the court’s order
by moving Lila’s residence to Wisconsin, that Lynn’s behavior
satisfied the bad faith standard set out in Mennemeyer v.
Mennemeyer, Ky. App., 887 S.W.2d 555 (1994)1, and that David
should be designated as Lila’s primary residential custodian.
The trial court overruled Lynn’s objections and confirmed the
report as part of the order which it entered on March 10, 2000.
On appeal, this court vacated and remanded the matter
for reconsideration in light of KRS 403.340, KRS 403.350, and
Scheer v. Zeigler, Ky. App., 21 S.W.3d 807 (2000).
On remand,
the trial court specifically relied on KRS 403.340(3), as
amended effective March 21, 2001.
Based on the existing
evidence, the court again sustained David’s motion and
designated him as Lila’s primary residential custodian.
Lynn’s
motion to alter the order was denied and this second appeal
followed.
The appeal subsequently was abated on January 30,
1
Mennemeyer was subsequently overruled by Scheer v. Zeigler, Ky. App., 21
S.W.3d 807 (2000).
3
2002, pending the Kentucky Supreme Court’s final disposition of
Fenwick v. Fenwick, Ky., 114 S.W.3d 767 (2003).
The appeal was
returned to this court’s active docket on October 21, 2003.
Fenwick addressed two separate appeals involving
attempts by primary residential custodians to relocate with
their children to other counties or states.
The supreme court
examined the development of case law pertaining to joint custody
modifications, and it held that although a primary residential
custodian’s
relocation will, as a practical matter,
impact a non-primary residential custodian’s
ability to share physical custody of the
children, the relocation does not extinguish
the non-primary residential custodial
parent’s rights with regard to shared
physical custody, nor would the relocation
affect the essential nature of the joint
custody – i.e., the parents’ shared
decision-making authority. Thus, 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.
He or she must therefore show that “[t]he
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 sum up, when a primary residential
custodian gives notice of his or her intent
to relocate with the parties’ child, the
burden is then upon any party objecting to
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file a custody modification motion within a
reasonable time and after that, to satisfy
the modification standard of KRS 403.340 in
order to change the designation of primary
residential custodian. If no motion is
filed within a reasonable time, the primary
residential custodian may relocate with the
parties’ child.
Fenwick, 114 S.W.3d at 785-86 (footnote omitted).
The court
further held that even though the amount of time available to
parents to spend with their children might be affected by one
parent’s relocation, that fact
does not, standing alone, support a finding
that the proposed relocation creates a
likelihood of serious harm to the children.
Any move by a custodial parent, even one of
only a short distance in the same community,
has the potential to impact the noncustodial
parent’s personal time with his or her
children. To hold that this inherent effect
of relocation constitutes grounds for
modification, however, would result in a
blanket denial of relocation whenever the
noncustodial parent objected to a proposed
move. We recognize that tradeoffs are
inevitable, and further observe that if
Susan Fenwick were forced to relinquish her
primary residential custodian designation in
order to move closer to her employment, her
time with the children would necessarily
likewise be reduced.
We realize that relocation often causes
a hardship or inconvenience on the
noncustodial parent’s ability to exercise
time-sharing with his or her child, but that
fact, in itself, does not constitute a valid
reason to prohibit relocation. Modern
American society is increasingly mobile, and
therefore, as the Wilson Court stated, “a
custodial parent cannot, in today’s mobile
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society, be forced to remain in one location
in order to retain custody.”
114 S.W.3d at 788-89 (footnotes omitted).
Finally, the court
noted that whether a primary residential custodian has plausible
reasons for moving to another locale is simply not germane to a
KRS 403.340 inquiry.
Id. at 791.
Here, as in Fenwick, the motion to modify custody was
first considered by the trial court long before the legislature
amended KRS 403.340 in 2001 to require trial courts in custody
modification situations to consider children’s best interests in
light of the factors set out in KRS 403.270(2) for use in making
initial custody decisions.
The version of KRS 403.340 which was
in effect between July 1998 and March 2001 stated in pertinent
part as follows:
(2) 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 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. In applying these standards, the
court shall retain the custodian appointed
pursuant to the prior decree unless:
(a)
The custodian agrees to the
modification;
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(b)
The child has been integrated into the
family of the petitioner with 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; or
(d)
The custodian has placed the child with
a de facto custodian.
(3) 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
defined by KRS 403.720, is found by the
court to exist, the extent to which the
domestic violence and abuse has
7
affected the child and the child’s
relationship to both parents.
(Emphasis added.)
The trial court on remand, however, specifically
considered David’s custody modification motion under the amended
version of KRS 403.340 which was in effect at the time of its
July 2001 reconsideration.
The court found that Lila had “been
integrated into the family of her father with the consent of her
mother” since by agreement she had spent equal amounts of time
with each party, that Lila’s relationship with David was “more
important” than that with Lynn, that Lila was “more comfortable
and adjusted in Kentucky,” and that it would be in Lila’s best
interest to remain in Kentucky with David.
Next, the court
considered the effects of Lila’s present environment on her
physical, mental, moral or emotional health.
The court referred
to evidence regarding David and Lila’s relationship, Lynn’s
health and anger toward David, Lynn’s failure to encourage David
and Lila’s relationship, Lila’s expressed desire to remain in
Kentucky, and the impact which frequent traveling had on Lila.
The court concluded that it would be in Lila’s best interest to
remain in Kentucky with David.
It is clear from Fenwick that on remand, David’s
motion should have been considered in light of the version of
KRS 403.340 which was in effect in 2000 when the motion first
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was ruled upon by the trial court.2
As stated in Commonwealth,
Department of Agriculture v. Vinson, Ky., 30 S.W.3d 162, 168
(2000),
Kentucky law prohibits the amended
version of a statute from being applied
retroactively to events which occurred prior
to the effective date of the amendment
unless the amendment expressly provides for
retroactive application. . . . This is a
very fundamental principle of statutory
construction in Kentucky. The courts have
consistently upheld this admonition and have
declared there is a strong presumption that
statutes operate prospectively and that
retroactive application of statutes will be
approved only if it is absolutely certain
the legislature intended such a result.
This is particularly true when the
legislation is substantive and not remedial,
and new rights and new duties are created.
2
The supreme court acknowledged in Fenwick that although KRS 403.340 had been
modified, it was applying the version of the statute which was in effect when
the appealed orders were entered in December 1997 and September 1998. Our
review of the statute’s legislative history shows that KRS 403.340 was
modified in 1998 to add provisions regarding de facto custodians. Those
modifications are not relevant to Fenwick or the instant proceeding.
However, effective March 21, 2001, the Kentucky General Assembly renumbered
KRS 403.340(2) as subsection (3), and it deleted the requirement that in
response to a motion to modify custody, the trial court should “retain the
custodian appointed pursuant to the prior decree” unless certain specific
conditions exist. Although the best interest factors set out in KRS
403.270(2) formerly were applied only to initial determinations of custody,
the legislature amended KRS 403.340(3) to require the court to consider those
factors “[w]hen determining if a change has occurred and whether a
modification of custody is in” a child’s best interests.
Given Fenwick’s intentional reliance on the version of KRS 403.340
which existed when the appealed orders were entered by the trial courts in
1997 and 1998, it is clear in the matter now before us that the trial court’s
March 2000 order on remand, granting David’s motion for modification, should
have been based on KRS 403.340 as it existed prior to the March 2001
amendments. Our opinion does not address the effects which the 2001
amendments to KRS 403.340 may have on custody modification orders entered
subsequent to March 1, 2001.
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Hence, the trial court was statutorily required to retain Lynn
as Lila’s custodian unless David was able to show that Lila’s
present environment seriously endangered her “physical, mental,
moral, or emotional health,” and that the advantages involved in
changing her environment would outweigh the harm likely
associated with such a change.
KRS 403.340.
Since the trial
court utilized the wrong standard by addressing David’s motion
to modify custody under KRS 403.340 as amended in 2001, rather
than under the version of the statute which existed in 2000,
this matter must be remanded for reconsideration under KRS
403.340, KRS 403.350, and Fenwick.
Finally, Lynn contends that the single affidavit which
David filed with his initial motion to modify custody was
insufficient to satisfy the threshold requirements pertaining to
a motion for custody modification filed within two years of the
custody decree.
When David filed his motion in 1998, however,
it was settled under Mennemeyer that a modification of joint
custody should be treated as an initial custody determination
under KRS 403.270.
was sufficient.
Hence, at that time David’s single affidavit
However, while the order granting David’s
motion was pending on appeal, this court overruled Mennemeyer
and held in Scheer that a motion to modify joint custody, like a
motion to modify sole custody, is subject to the KRS 403.340 and
KRS 403.350 requirements pertaining to the filing of two or more
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affidavits in support of any custody modification motion filed
within two years of the entry of a custody decree.
3
However,
under circumstances such as these, where David’s custody
modification motion predated Scheer by some two years and
evidently complied with the statutes and case law which were
applicable at the time, it would be inequitable to apply current
threshold filing requirements to the motion to modify.
Cf.
Manly v. Manly, Ky., 669 S.W.2d 537 (1984) (supreme court
prospectively applied its holding that the payment of a filing
fee is a condition precedent to the filing of a notice of
appeal).
Hence, we conclude that the trial court did not err by
failing to further address the affidavit issue on remand.
The circuit court’s order granting David’s motion to
modify custody is vacated, and this matter is remanded with
directions to consider the motion in light of Fenwick, KRS
403.340, and KRS 403.350.
ALL CONCUR.
3
KRS 403.340 and KRS 403.350 both require the filing of “affidavits” if a
custody modification motion is made within two years of the entry of a
custody decree. The Kentucky Supreme Court has interpreted such language as
requiring the filing of at least two affidavits if the motion is made within
that time period. Petrey v. Cain, Ky., 987 S.W.2d 786 (1999). See also
Copas v. Copas, Ky. App., 699 S.W.2d 758 (1985).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark A. Ogle
Ft. Mitchell, Kentucky
James R. Kruer
Adams, Stepner, Woltermann
& Dusing, P.L.L.C.
Covington, Kentucky
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