KATHY ROBINSON JACKSON v. WALTER JACKSON, JR.
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RENDERED: JUNE 11, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000929-MR
KATHY ROBINSON JACKSON
v.
APPELLANT
APPEAL FROM MARTIN FAMILY COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 97-CI-00026
WALTER JACKSON, JR.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY AND MINTON, JUDGES.
GUIDUGLI, JUDGE.
Kathy Robinson Jackson (hereinafter “Kathy”)
has appealed from the Martin Family Court’s April 3, 2003, order
granting her former husband, Walter Jackson, Jr.’s (hereinafter
“Walter”) motion to alter, amend or vacate the order granting
her visitation with their minor child, Austin Tyler Jackson
(hereinafter “Austin”).
Having reviewed the record1 and having
determined that the family court utilized the wrong standard to
1
The certified record does not contain any transcripts or videotapes of any
of the hearings held in this case.
restrict Kathy’s visitation rights and did not hold a hearing,
we must vacate the family court’s order and remand the matter
for further proceedings.
Kathy and Walter were married on October 11, 1994, in
Lawrence County, Kentucky.
They separated on May 28, 1996, and
their son Austin was born on January 17, 1997.
Walter filed a
Petition for Dissolution of Marriage on February 3, 1997.
At
the time Walter filed the petition, Kathy and Austin were living
in West Virginia.
Walter requested sole custody of Austin,
stating in the petition that Kathy posed an immediate threat to
Austin’s safety and well-being.
Kathy disputed Walter’s
allegations in her response, and also requested custody of
Austin.
On April 22, 1999, the family court adopted the
Domestic Relations Commissioner’s recommended Findings of Fact,
Conclusions of Law, Decree of Dissolution, Order and Judgment,
to which no exceptions were filed.
In doing so, the family
court dissolved the marriage, ordered joint custody of Austin
with Walter being the residential custodian, and recommended
time-sharing for Kathy.
Following the entry of the decree,
Kathy was held in contempt, and apparently jailed, for failing
to comply with the terms of the decree.
Kathy eventually
complied and turned Austin over to Walter on October 1, 1999.
On April 25, 2002, Kathy filed a motion to establish
visitation.
In the motion, she stated that she had not seen
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Austin since January 19, 2000, and that she had been awarded
visitation in the decree.
The DRC heard arguments on this
motion on July 24, 2002, where both parties were represented by
counsel.
On August 6, 2002, the DRC recommended an order
granting Kathy’s motion in part, and directing the Lawrence
County Division for Protection and Permanency to arrange for
supervised visitation between Kathy and Austin and to inspect
Kathy’s home.
2002.
A review was then scheduled for September 25,
Following this review, the DRC recommended an order on
October 2, 2002, noting that Walter objected to any visitation
other than supervised visitation and that Kathy was amenable to
supervised visitation, but wanted a gradual reunification to
occur leading to unsupervised visits with Austin.
The DRC then
recommended that Kathy have supervised visitation, which the
Lawrence County Division for Protection and Permanency would set
up and then evaluate.
On October 15, 2002, attorney Brian Cumbo re-entered
an appearance for Walter, in place of attorney J. Thomas Hardin,
and filed on motion on his behalf to alter, amend or vacate the
October 2, 2002, order.
In the motion, supported by his
affidavit, Walter asserted that he strenuously objected to
visitation between Kathy and Austin in that Kathy was a danger
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to her children2 and Austin was becoming emotionally troubled due
to the court order requiring him to visit with Kathy.
On
November 27, 2002, Walter filed a supplement to his motion to
alter, amend or vacate, consisting of an affidavit from Kathy’s
father and records from Mountain Comprehensive Care Center
regarding treatment Austin had received.
The motion was
apparently heard by the family court on March 12, 2003, during a
status hearing.
On April 3, 2003, the family court entered the
following order:
This matter came before the Court for a
Status Hearing. Pending before the Court
was Petitioner’s Motion to Alter, Amend or
Vacate the Order of the Domestic Relations
Commissioner relative to visitation, entered
on October 2, 2002.
Present at the Status Hearing was the
Petitioner, represented by counsel, the Hon.
Brian Cumbo. The respondent was present in
person.
The Court designated social worker was
previously Ordered to interview the minor
child relative to the allegations as set
forth in Affidavits and documents supporting
Petitioner’s Motion to Alter, Amend or
Vacate.
The Court having considered the record,
the pleadings, and arguments of counsel, and
being otherwise duly and sufficiently
advised, Petitioner’s Motion to Alter, Amend
or Vacate is HEREBY SUSTAINED. The Court is
convinced that visitation, supervised or
otherwise, is contrary to the best interest
of the minor child.
2
The record reflects that Kathy has had more than one child, but Austin is
the only child at issue in this case.
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This appeal followed.
On appeal, Kathy argues that the family court erred in
applying the best interest of the child standard rather than the
serious endangerment standard when it restricted her right to
any type of visitation.
Furthermore, she asserts that the
family court erred in failing to hold an evidentiary hearing
pursuant to KRS 403.320(1) or to issue any specific findings of
fact.
On the other hand, Walter argues that Kathy did not
properly preserve the issue regarding the denial of visitation
because her counsel did not attend the hearing or ask the family
court to revisit the issue.
He also argues that the certified
record supports a finding of endangerment to the minor child,
and that the family court’s error, if any, in applying the wrong
standard was harmless.
We disagree with Walter’s preservation
argument, and shall consider the merits of the appeal.
KRS 403.320 sets out the applicable law relative to
visitation:
(1)
A parent not granted custody of the
child is entitled to reasonable
visitation rights unless the court
finds, after a hearing, that visitation
would endanger seriously the child’s
physical, mental, moral, or emotional
health. Upon request of either party,
the court shall issue orders which are
specific as to the frequency, timing,
duration, conditions, and method of
scheduling visitation and which reflect
the development age of the child.
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(2)
If domestic violence and abuse, as
defined in KRS 403.720, has been
alleged, the court shall, after a
hearing, determine the visitation
arrangement, if any, which would not
endanger seriously the child’s or the
custodial parent’s physical, mental, or
emotional health.
(3)
The court may modify an order granting
or denying visitation rights whenever
modification would serve the best
interests of the child; but the court
shall not restrict a parent’s
visitation rights unless it finds that
the visitation would endanger seriously
the child’s physical, mental, moral, or
emotional health.
The appellate courts have addressed the proper
standard a lower court must apply in determining visitation.
In
Hornback v. Hornback, Ky.App., 636 S.W.2d 24 (1982), this Court
reviewed a case in which the mother, in the judgment, was
temporarily denied visitation with her three minor children, but
was afforded the opportunity to request reconsideration once she
was mentally and emotionally stable.
In rewarding her efforts
to improve, the lower court found that she should be allowed
some visitation.
Holding that the lower court did not comply
with either the judgment entered in the case or KRS 403.320,
this Court reversed.
In doing so, the Court addressed the
requirements of KRS 403.320 as follows:
Under K.R.S. 403.320(1), the noncustodial
parent has absolute entitlement to
visitation unless there is a finding of
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serious endangerment. No “best interests”
standard is to be applied; denial of
visitation is permitted only if the child is
seriously endangered. . . .
Under subsection (2)[3] of the statute, a
“best interests” of the child standard is
required when a judgment is sought to be
modified. In modifying a previous denial of
visitation to allow visitation, there is no
presumption, as in subsection (1), of
entitlement to visitation. Instead, the
child’s best interests must prevail. . . .
We interpret the second clause of subsection
(2) as referring to a situation where a
party seeks to modify visitation rights that
have been previously granted. In such a
situation the court may not take away a
parent’s visitation rights without a showing
that the child would be seriously endangered
by visitation. The standards for modifying
a judgment to disallow visitation are no
less stringent that the standards to deny
visitation at the outset of the case. Once
a finding has been made that the children’s
welfare is endangered, however, the court
may not modify the judgment without finding
that the best interests of the child are
served.
Hornback, 636 S.W.2d at 26.
In the present case, Kathy was
awarded time-sharing, or visitation rights, with Austin in the
decree.
Because she was originally granted visitation rights,
the proper standard to apply is the serious endangerment
standard.
It is clear from the order on appeal that the family
court erred in improperly applying a best interest of the child
standard rather that the serious endangerment standard in
3
In the current version of the statute, this is subsection (3).
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denying Kathy any visitation rights.
Because the family court
applied the wrong standard, we must vacate this order.
As to the issue of whether Kathy was entitled to a
hearing, we look to the case of McNeeley v. McNeeley, Ky.App.,
45 S.W.3d 876 (2001), for guidance.
In McNeeley, the lower
court granted an incarcerated father visitation with his four
minor children without first holding a hearing, when he had not
previously been granted visitation.
After noting that KRS
403.320(3), which provides for the modification of a visitation
order, does not specifically address the requirement of a
hearing, this Court stated it had previously “observed that the
modification provision of the statute contains the same
‘stringent’ requirements for determining the appropriateness of
visitation.”
McNeeley, 45 S.W.3d at 877.
The Court went on to
“infer from the statute that a hearing is required for the
purpose of determining the best interests of these children.”
Id. at 878.
Furthermore, this Court previously held, “one may
not be deprived of the right to visit his child without a
hearing.”
Smith v. Smith, Ky.App., 869 S.W.2d 55, 56 (1994).
In the present matter, we cannot ascertain from the record that
Kathy was afforded the right to a hearing prior to being
deprived of her right to visitation with Austin, where she could
contest Walter’s assertion that she should not be afforded any
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visitation.
This is contrary to both statutory and case law,
and is error on the part of the family court.
Additionally, we cannot agree with Walter’s assertion
that the family court’s error in this case is harmless.
Although the medical treatment and evaluation records, as well
as other documents, filed regarding Kathy and Austin are
disturbing, we cannot make a determination that visitation with
Kathy would seriously endanger Austin; this determination is
left to the family court after a hearing.
On remand, the family court must afford Kathy the
right to a full hearing, and determine whether Austin’s
visitation with her would seriously endanger his physical,
mental, moral or emotional health prior to allowing or
restricting her visitation rights.
KRS 403.320(3); McNeeley v.
McNeeley, Ky.App., 45 S.W.3d 876 (2001).
For the foregoing reasons, the April 3, 2003, Order of
the Martin Circuit Court is vacated, and this matter is remanded
for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael T. Hogan
Louisa, KY
Brian Cumbo
Inez, KY
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