AMANDA MALONE (NOW SCHAEFER) v. MARK MALONE
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RENDERED: AUGUST 13, 2004; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000516-MR
AMANDA MALONE (NOW SCHAEFER)
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 00-CI-00140
v.
MARK MALONE
APPELLEE
OPINION
AFFIRMING IN PART
VACATING IN PART AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Amanda Malone (now Schaefer) brings this appeal
from a February 11, 2003, order of the Shelby Circuit Court.
We
affirm in part, vacate in part, and remand with directions.
Amanda and Mark Malone married on March 26, 1994.
children were subsequently born of the marriage.
Two
The parties
were divorced by decree of dissolution of marriage entered in
the Shelby Circuit Court on February 21, 2001.
Issues of
custody and visitation were reserved for future adjudication.
On October 31, 2001, the circuit court entered an
order adopting the parties’ agreement regarding custody and
visitation.
The order provided the parties would share joint
custody and Amanda would serve as the children’s primary
residential custodian.
The visitation schedule set forth in
Mark’s post-hearing memorandum was adopted by the court.
It
provided that Mark would have “visitation every other week,
Thursday through Sunday at 5:00 p.m.”
It also provided for
“overnight visitation with the children on the other Thursday
from after school through Friday morning . . . [and] every other
Monday from after school until 8:00 p.m.”
In January 2002, Amanda remarried.
Shortly
thereafter, Amanda informed Mark that she and her new husband
would be relocating, with the parties’ children, to Stuttgart,
Germany.
On March 22, 2002, Mark filed a “Motion To Revise
Parenting Schedule.”
The parties were initially ordered to seek
mediation, but no agreement was reached.
On May 21, 2002, Mark
filed a Motion for a Restraining Order to preclude the
relocation of the children to Germany.
The circuit court’s order of September 5, 2002, found
that Amanda’s proposed relocation of the children to German may
endanger seriously their physical, mental, moral or emotional
health.
Thus, the matter was referred to the Domestic Relations
Commissioner for an evidentiary hearing.
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Ky. R. Civ. P. 53.03.
The Commissioner’s Recommended Order of December 18,
2002, set forth a “visitation schedule” that would require the
children to alternate school semesters and summers between
Germany and Kentucky.
The recommendation relied extensively
upon the report of Dr. Lee Epstein who had previously evaluated
both parties and the children.
In his report, Dr. Epstein
opined the oldest child would benefit from remaining in Kentucky
with Mark during the upcoming school year and continuing
relationships with her extended family.
Dr. Epstein further
recommended that the two girls not be separated.
Both parties subsequently filed exceptions to the
Commissioner’s recommendation and the matter was then heard by
the circuit court.
On February 11, 2003, the circuit court’s
order was entered, which set out the following “visitation
schedule or parenting plan”:
Spring term 2003
Mark (Kentucky)
Summer
Amanda (Germany)
Fall term 2003
Mark (Kentucky)
Christmas (2 weeks)
Amanda (Germany)
Spring term 2004
Amanda (Germany)
Summer 2004
Mark (Kentucky)
Fall term 2004
Amanda (Germany)
Christmas (2 weeks) 2004
Mark (Kentucky)
Spring term 2005
Mark (Kentucky)
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Summer 2005
Amanda (Germany)
Fall term 2005
Mark (Kentucky)
Christmas (2 weeks) 2005
Amanda (Germany)
The order also provided that the “same rotation pattern or
schedule shall continue beyond 2005 unless the parties agree
otherwise or until further order of this Court.”1
was ordered to pay child support.
Neither party
This appeal follows.
Amanda raises two issues on appeal.
First, she
contends the circuit court abused its discretion by applying the
wrong standard to the relocation issue and, thus, ordering the
parties’ children to divide the school year in separate
locations (countries).
Second, she contends the circuit court
abused its discretion by not awarding her child support, we
shall address these issues seriatim.
In considering the issue of relocation, the circuit
court utilized the modification of visitation standard of KRS
403.320(3).
By so doing, we think the circuit court committed
error.
In Fenwick v. Fenwick, Ky., 114 S.W.3d 767 (2003), the
Supreme Court of Kentucky recently held that if the primary
residential custodian wishes to relocate with the children
against the wishes of the non-custodial parent, the non1
The court notes that both the recommendation of the domestic relations
commissioner and the circuit court’s order set out a plan that would require
the children to divide their school year in Germany and Kentucky for at least
three years.
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custodial parent must seek to change the primary residential
custodian designation pursuant to the modification of custody
standard set forth in Kentucky Revised Statutes (KRS) 403.340.
Simply put, Fenwick clearly established when a that primary
custodian wishes to relocate against the wishes of a noncustodian, the appropriate standard is the modification of
custody standard set forth in KRS 403.340, and not the
modification of visitation standard set forth in KRS 403.320.
As Amanda (primary custodian) wished to relocate the children
against the wishes of Mark (non-custodian), the circuit court
should have applied the modification of custody standard under
KRS 403.340.2
2
Kentucky Revised Statutes 304.340(3) states:
(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
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
-5-
This matter is therefore remanded to the circuit court
with directions to apply KRS 403.340 and make a determination of
custody in accordance therewith.
We, however, harbor grave
doubt that the “visitation schedule” set forth in the February
11, 2003, order will be the appropriate outcome under such
analysis.
It is very unlikely that a schedule which requires a
division of the school year between two different schools in
different countries is in the best interest of the children
pursuant to KRS 403.340.
Amanda’s final contention is that the circuit court
erred by not awarding child support.
Amanda asserts that even
if the children spend equal time with each party it is an abuse
of discretion for her not to be awarded child support given the
vast disparity in the parties’ incomes.
KRS 403.211(2) provides that “[c]ourts may deviate
from the guidelines where their application would be unjust or
inappropriate.”
Under such circumstances the court must make a
finding identifying the reason for the deviation.
In this case, the circuit court addressed the issue of
child support and specifically stated that the “shared rotation
plan necessitates a modification of child support since the
parties will share time equally with the children.”
The court
(f) Whether the custodian has placed the child with a
de facto custodian.
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also stated that consideration was given to cost of the
children’s travel pursuant to the shared parenting plan.
Upon
the whole, we cannot say that it was an abuse of discretion for
the circuit court to deviate from the child support guidelines
and not award support to Amanda under the circumstances of the
shared parenting plan.
We recognize, however, the circuit court
will undoubtedly be required to revisit the issue of child
support in light of modification to the custody decree.
For the foregoing reasons, the order of the Shelby
Circuit Court is affirmed in part, vacated in part, and this
matter is remanded with directions for the circuit court to
enter an order not inconsistent with the foregoing opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Grant M. Helman
J. Michael Smither
Louisville, Kentucky
Denise M. Helline
RUCK, WILSON, HELLINE &
BROCKMAN, PLLC
Louisville, Kentucky
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