CATHY Y. NEWTON v. GARY SCOTT NEWTON
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RENDERED: October 8, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002551-MR
CATHY Y. NEWTON1
APPELLANT
APPEAL FROM FRANKLIN FAMILY COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 03-CI-00117
v.
GARY SCOTT NEWTON
APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Cathy Y. Newton has appealed from the findings
of fact, conclusions of law, and decree of dissolution of
marriage of the Franklin Circuit Court, Family Court Division
entered on September 30, 2003.
1
Having concluded that the family
The notice of appeal in this case lists the appellant as “Kathy”, however
her signature on the response to the petition for dissolution of marriage
shows her name as “Cathy.” For purposes of this appeal, we will refer to the
appellant as “Cathy.”
court did not abuse its discretion given under KRS2 403.190 by
ordering the marital residence sold, debts paid, and proceeds
divided, and that it made sufficient findings under CR3 52.01, we
affirm that portion of the decree of dissolution.
Having
concluded that the family court failed to make specific findings
of fact regarding the physical possession of the children,
leaving this Court unable to determine whether the family court
properly applied the factors of KRS 403.270 in making this
portion of the custody award, we must vacate that portion of the
decree of dissolution and remand for further proceedings and
specific findings to be entered as required by CR 52.01.
Having
concluded that the award of equal physical possession of the
children must be vacated and the matter must be remanded for
further findings, we also vacate the family court’s childsupport award.
Even though we do not find an abuse of
discretion as to the child-support award based upon equal
physical possession of the children, we must vacate the childsupport award so it can be reviewed on remand following the
review of the custody award.
FACTS OF THE CASE
Cathy and Gary were married on June 28, 1980.
2
Kentucky Revised Statutes.
3
Kentucky Rules of Civil Procedure.
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Their
first child, Amber, was born on October 31, 1986, and their
second child, Cameron, was born on April 29, 1997.
The parties
purchased the marital residence on April 6, 1992, and
continuously lived together in the residence until Gary moved
during March 2003.
However, the parties’ date of physical
separation was January 1, 2003.
Gary filed a dissolution of
marriage action in the Family Court Division of the Franklin
Circuit Court on January 29, 2003, and Cathy accepted service of
summons on that date.
This action was heard by the family court
on July 31, 2003.
On September 30, 2003, the family court entered
findings of fact, conclusions of law, and decree of dissolution
of marriage, finding among other things that (1) the parties
shall have joint custody of their two minor children, with equal
possession time, alternating weeks; (2) Gary shall pay child
support to Cathy in the amount of $42.08 per month, i.e. the
difference in the child support each party would owe the other
under the guidelines; and (3) the parties’ marital home shall be
sold and, after the two mortgage debts are paid, the remaining
marital debts shall be satisfied from the proceeds and the
parties shall divide equally the remaining proceeds from the
sale.
On November 6, 2003, the family court denied Cathy’s
motion to alter, amend, or vacate the family court’s September
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30, 2003, order as to the above-referenced findings.
This
appeal followed.
EQUAL PHYSICAL POSSESSION UNDER JOINT CUSTODY AWARD
Cathy has asked this Court to reverse the portion of
the family court’s joint custody award of equal physical
possession for two reasons: (1) the family court failed to make
specific findings of fact as required under CR 52.01 and (2) the
family court failed to consider all the factors as set out in
KRS 403.270 in making its conclusions of law.
We will first address whether the family court
made sufficient findings of fact under CR 52.01 to support its
joint custody award of equal physical possession.
“The
cornerstone of CR 52.01 is the trial court’s findings of fact,”4
as they give this Court ”a clear understanding of the grounds
and basis of the trial court’s judgment . . . .”5
In domestic
relations cases,6 there is no jury and the family court as the
sole finder of fact must find the facts “specifically and state
separately its conclusions of law thereon and render an
appropriate judgment . . . .”7
It is expected that courts “‘. .
4
Stafford v. Stafford, Ky.App., 618 S.W.2d 578, 580 (1981).
5
Id.
6
Aton v. Aton, Ky.App., 911 S.W.2d 612, 615 (1995).
7
CR 52.01 provides:
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. will give more careful consideration to the problem if they
are required to state not only the end result of their inquiry,
but the process by which they reached it.’”8
This Court is constrained by CR 52.01 from overturning
the findings of the family court, if supported by substantial
evidence and thus not clearly erroneous.9
“‘Substantial
evidence’ is evidence of substance and relevant consequence
sufficient to induce conviction in the minds of reasonable
people.”10
The clearly erroneous standard protects against
In all actions tried upon the facts
without a jury or with an advisory jury, the
court shall find the facts specifically and
state separately its conclusions of law thereon
and render an appropriate judgment; and in
granting or refusing temporary injunctions the
court shall similarly set forth the findings of
fact and conclusions of law which constitute
the grounds of its action. Requests for
findings are not necessary for purposes of
review except as provided in Rule 52.04.
Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be
given to the opportunity of the trial court to
judge the credibility of the witnesses. The
findings of a commissioner, to the extent that
the court adopts them, shall be considered as
the findings of the court. If an opinion or
memorandum of decision is filed, it will be
sufficient if the findings of fact and
conclusions of law appear therein. Findings of
fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56 or
any other motion except as provided in Rule
41.02.
8
Stafford, 618 S.W.2d at 580 (quoting U.S. v. Merz, 376 U.S. 192, 84 S.Ct.
639, 11 L.Ed.2d 629 (1964)).
9
10
Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 782 (2002).
Id.
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actions being “tried anew upon appeal.”11
Therefore, this Court
uses caution in reversing a custody award of the family court.
We must uphold the ruling of the family court if its decision is
supported by findings which are supported by the evidence, and
we cannot reverse the trial court just because we as an
appellate court do not agree with its decision.12
The importance
and consequences of a family court’s decision in domestic
relations cases cannot be overstated.
We, as an appellate court, are not
unmindful that the most burdensome and
frustrating work of the trial court is
its task in decision making associated
with nonjury trials under CR 52.01 and
that the bulk of this burden is in
family law cases. However, our Supreme
Court, in its rule making and
supervisory capacity, has placed the
utmost trust and responsibility in the
trial courts by adopting CR 52.01. The
rule states that the facts shall be
found ‘specifically.’ The rule is
mandatory on the trial courts.13
It is apparent to this Court that the family court’s
findings regarding physical possession are not sufficient.
The
family court’s only finding as to custody was as follows:
(4)
During the pendency of this action
the children have primarily
resided with Ms. Newton and Mr.
11
Stafford, 618 S.W.2d at 579.
12
Chalupa v. Chalupa, Ky.App., 830 S.W.2d 391, 393 (1992).
13
Stafford, 618 S.W.2d at 580 (citing Fleming v. Rife, Ky., 328 S.W.2d 151
(1959); and Standard Farm Stores v. Dixon, Ky., 339 S.W.2d 440 (1960)).
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Newton has had visitation with
them every other weekend and on
Wednesday evenings.
Later, the family court made the following conclusion of
law:
(3)
Both parties are fit and proper
parties to have custody of their
minor children. It is in the
children’s best interest that the
parties be awarded joint custody
and that they have equal
possession time with them, with
each party having the children on
alternating weeks. The parties
should remain flexible and
cooperate with each other in
working out deviations from the
week-to-week schedule upon each
other’s request.
In his petition, Gary pled for joint custody of the
parties’ minor children.
In her verified response to the
petition, Cathy pled for sole custody of the two minor children,
subject to reasonable visitation rights by Gary.
The temporary
custody arrangements were by an agreement of the parties, but no
pendente lite order was entered.
Gary testified that he had
chosen not to press the issue of equal time during the pendency
of the action, but rather chose to allow the family court to
make a final decision on the issue.
Both parties had testified at the final hearing as to
custody of the children.
But, there is no mention of this
testimony in the family court’s findings.
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Cathy testified that
(1) she had been the primary caregiver of the children during
the marriage; (2) while Gary had from time to time assisted, she
had been the one responsible for taking care of the marital
home, including cooking, cleaning, and washing, and taking care
of the children’s medical needs, haircuts, and shopping for
school clothes; and (3) Cameron had various medical problems
including asthma and a respiratory infection, which required
continual care and she primarily had been the one to make sure
that he received this care.
Gary denied in his testimony that
Cathy was the primary caregiver of the children during the
marriage.
While he admitted that she met many of the children’s
needs, Gary testified that he also was involved in their lives
and performed tasks such as cooking and washing, helping with
school work and activities, maintaining Amber’s car, and staying
home with the children when they were sick and when Cathy had to
go out of town to tend to a sick relative.
Both parties admitted that the other was a good parent
and that Cathy was the one who primarily took the children to
church.
They both further admitted that the children were
especially close to their paternal grandparents, who lived next
door to the marital home.
Cathy testified that the paternal
grandparents had aided in some of the visitation since the
parties had separated.
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Cathy testified that the children should not be
uprooted from the martial home where Amber had resided for most
of her life and where Cameron had resided his entire life.
She
further testified that she felt that the children needed
stability and security and that this could be provided by her
being allowed to reside with them in the marital residence until
they reached the age of majority.
Gary testified that he wanted more time with the
children than he had received during the separation period.
He
testified that he felt that the parties should sell the marital
real estate and pay off all debts and the remaining proceeds
would be available for each of them to start over in a home for
the children.
He further testified that he did not feel that
alternating the weeks that the children lived with their parents
would be disruptive or unsettling to them.
Gary testified that
seeing his children only every other weekend would be
“devastating” to both him and the children.
He felt that a
schedule of alternating weeks would allow him to help the
children with their homework and to remain current with their
school activities.
After a family court has made the findings required by
CR 52.01, it is then required to apply the law to the facts and
its decision is not to be disturbed unless it constitutes an
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abuse of discretion.14
This Court is unable to determine whether
the family court appropriately took the next step and applied
the law set out in KRS 403.270 because of its lack of specific
findings to support its equal physical possession award of the
minor children.
KRS 403.270(2) requires the family court to determine
custody based on the best interests of the child, while
considering both parents equally and considering all relevant
factors.15
This Court has determined that there is no
14
Sherfey, 74 S.W.3d at 782-83.
15
KRS 403.270(2) states:
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;
(f)
Information, records, and evidence of
domestic violence as defined in KRS
403.270;
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“significant difference” in the analysis required to make an
award of joint custody versus sole custody.16
“The ultimate or
conclusory fact to be found is a determination of the ‘best
interests of the child.’
However, before the factual conclusion
can be reached the court is to consider all relevant factors
including those specifically enumerated in the statute.”17
This
is because the factors allow a child to be “individualized and
his or her unique circumstances accounted for.”18
In this case, it is undisputed that it is in the best
interests of the children that the parties share jointly in
making decisions regarding the children.
In this appeal, Cathy
challenges the award of equal physical possession of the
children.
The determination of the physical custody of the
(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 by KRS 403.270 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.
16
Squires v. Squires, Ky., 854 S.W.2d 765, 768 (1993).
17
Stafford, 618 S.W.2d at 580.
18
Squires, 854 S.W.2d at 769.
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children is a part of the joint custody award and it should be
based on the “child’s best interest.”
This does not require “an
equal division of time with each parent; rather, it means that
physical custody is shared by the parents in a way that assures
the child frequent and substantial contact with each parent
under the circumstances.”19
Not one of the nine factors set out in KRS 403.270 is
addressed in the family court’s findings.
From the testimony of
the parties as set out above, several of the factors were
relevant, including:
(a)
(b)
The wishes of the child as to his
custodian;20
(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)
19
The wishes of the child’s parent
or parents, and any de facto
custodian, as to his custody;
The mental and physical health of
all individuals involved[.]21
Fenwick v. Fenwick, Ky., 114 S.W.3d 767, 777-78 (2003).
20
Gary, in his brief, argues that there was not testimony regarding Amber’s
desire not to live with him, as Cathy claims in her brief. This Court will
not address whether or not these facts were raised at the final hearing, as
the ruling on custody is vacated and this matter is remanded for further
proceedings.
21
KRS 403.270(2).
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We do not contend that these are the only factors that
the family court should have considered in making its award, but
they are clearly relevant as evidenced by the testimony of
record in this case.
The findings supporting the custody award in the
case of McFarland v. McFarland,22 were very similar to those in
this case and simply stated, “[t]hat the Respondent is the fit
and proper person to have custody of the three minor children.”
This Court found that the trial court’s findings were “less than
adequate” and remanded the case for more specific findings and
for the taking of further proof, if necessary, on the custody
issue.23
This Court is required to do no less in this case, and
therefore, we vacate the family court’s order awarding equal
physical possession of the parties’ minor children and remand
this matter for further proceedings and specific findings to be
entered in compliance with CR 52.01.
CHILD SUPPORT
Cathy also argues that the family court’s decision to
deviate from the child-support guidelines constituted an abuse
of discretion.
Gary is an Engineering Technician III with the
Transportation Cabinet and his gross monthly earnings are
$4,768.72.
Gary, in October 2003, received an annual increment
22
Ky.App., 804 S.W.2d 17 (1991).
23
Id. at 18.
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to increase that amount.
Also, in 2002 Gary earned a gross
profit of $7,155.00 from his painting business, for a total
gross monthly income of $5,228.72.
found to be $3,914.68 per month.
Cathy’s gross income was
The family court correctly
noted that, under the applicable guidelines and using the
undisputed incomes of the parties, Gary’s monthly child support
would be $849.54.
Rather than imposing this amount, the family
court reasoned that, since each of the parties have the children
one-half of the time, child support should be based upon the
difference between Cathy’s and Gary’s respective obligations
under the guidelines and concluded that Gary should pay Cathy
child support in the amount of $42.08 per month.
“Since the interpretation of a statute is a legal
question, the trial court’s interpretation is subject to de novo
review by an appellate court.”24
A decision whether to deviate
from the guidelines is within the family court’s discretion.25
“KRS 403.211(2)26 specifically provides, ‘[c]ourts may deviate
24
Clary v. Clary, Ky.App., 54 S.W.3d 568, 571 (2001).
25
Rainwater v. Williams, Ky.App., 930 S.W.2d 405, 407 (1996).
26
KRS 403.211(1)-(4) states:
(1)
An action to establish or enforce child
support may be initiated by the parent,
custodian, or agency substantially
contributing to the support of the child.
The action may be brought in the county
in which the child resides or where the
defendant resides.
(2)
At the time of initial establishment of a
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child support order, whether temporary or
permanent, or in any proceeding to modify
a support order, the child support
guidelines in KRS 403.212 shall serve as
a rebuttable presumption for the
establishment or modification of the
amount of child support. Courts may
deviate from the guidelines where their
application would be unjust or
inappropriate. Any deviation shall be
accompanied by a written finding or
specific finding on the record by the
court, specifying the reason for the
deviation.
(3)
A written finding or specific finding on
the record that the application of the
guidelines would be unjust or
inappropriate in a particular case shall
be sufficient to rebut the presumption
and allow for an appropriate adjustment
of the guideline award if based upon one
(1) or more of the following criteria:
(a)
A child’s extraordinary medical or dental
needs;
(b)
A child’s extraordinary educational, job
training, or special needs;
(c)
Either parent’s own extraordinary needs,
such as medical expenses;
(d)
The independent financial resources, if
any, of the child or children;
(e)
Combined monthly adjusted parental gross
income in excess of the Kentucky child
support guidelines;
(f)
The parents of the child, having
demonstrated knowledge of the amount of
child support established by the Kentucky
child support guidelines, have agreed to
child support different from the
guideline amount. However, no such
agreement shall be the basis of any
deviation if public assistance is being
paid on behalf of a child under the
provisions of Part D of Title IV of the
Federal Social Security Act; and
(g)
Any similar factor of an extraordinary
nature specifically identified by the
court which would make application of the
guidelines inappropriate.
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from the guidelines where their application would be unjust or
inappropriate.’ Subsection (3)(g) of the same statute allows the
court, with appropriate findings, to deviate from the guidelines
for any circumstance of an ‘extraordinary nature.’”27
“Thus, the
courts have the flexibility to fashion appropriate orders for
situations not addressed by our statutory scheme.”28
“[W]e think
it is clear that the trial court could take into consideration
the period of time the children reside with each parent in
fixing support, and could deviate from the guidelines . . . if
convinced their application would be unjust.29
Thus, we conclude, assuming equal physical possession
of the children, that the family court’s method of
calculating child support was authorized by law.
Therefore,
under the circumstances as determined by the family court, its
award was not an abuse of its discretion.
However, because we
are vacating and remanding the family court’s joint custody
award of equal physical possession, it is premature to determine
the sufficiency of the child-support award and we must vacate
and remand the child-support award.
(h)
Following the family
“Extraordinary” as used in this section
shall be determined by the court in its
discretion.
27
Downey v. Rogers, Ky.App., 847 S.W.2d 63, 64-5 (1993).
28
Brown v. Brown, Ky.App., 952 S.W.2d 707, 708 (1997).
29
Downey, 847 S.W.2d at 65.
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court’s determination of custody, the family court shall set an
amount for child support.
IMMEDIATE SALE OF THE MARITAL RESIDENCE
Finally, we address the family court’s order of the
sale of the marital residence and the application of its
proceeds.
Once again, we must determine whether the family
court made sufficient findings under CR 52.01, and we hold that
the findings were sufficient.
The family court’s findings as to
this issue were as follows:
(5)
The parties jointly own the real
estate at 5332 Sleepy Hollow Drive
in Frankfort which they purchased
on April 6, 1992. Ms. Newton
submitted an appraisal of the
property in the amount of
$190,000.00. Mr. Newton testified
that the house is worth more than
the appraisal. The debt against
the property is $114,606.05,
including a home equity line of
credit.
(14) The parties have the following
debts (other than those
against the house and against
their vehicles) which were
incurred during their marriage and
for the benefit of both of the
parties:
Visa
Dillards
Shell
Lazarus
Discover
Total
$ 8,383.99
$
472.31
$ 1,762.93
$ 1,135.39
$ 1,816.22
$13,570.84
(15) During the pendency of this
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action each party has paid toward
marital obligations and no further
adjustment between the parties for
those payments is appropriate.
(15) The parties previously made a
division of their personal
property and the division is
reflected in the exhibits
introduced at the hearing. The
division made is an equitable one
and the Court will make no further
adjustment of those items.
The family court’s conclusions of law as to this issue were as
follows:
(6)
The property at 5332 Sleepy Hollow
Drive, Frankfort, Kentucky shall
be sold and, after the two
mortgage debts are paid, the debts
in paragraph 14 of the Findings of
Fact shall be satisfied. After
the said debts have been paid, the
remaining proceeds shall be
divided equally between the
parties. The sale of the property
will allow both parties to make a
new start and be essentially debtfree.
KRS 403.190(1)(d)30 allows the family court to divide
30
KRS 403.190(1) states:
In a proceeding for dissolution of the
marriage or for legal separation, or in a
proceeding for disposition of property
following dissolution of the marriage by a
court which lacked personal jurisdiction over
the absent spouse or lacked jurisdiction to
dispose of the property, the court shall assign
each spouse’s property to him. It also shall
divide the marital property without regard to
marital misconduct in just proportions
considering all relevant factors including:
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the marital property of divorcing parties and allows the court
to consider “the desirability of awarding the family home or the
right to live therein for reasonable periods to the spouse
having custody of any children.”31
upheld such a ruling.32
This Court has, in the past,
However, the trial court has “wide
discretion in the division of marital assets,”33 and such a
ruling is not required.
In support of her argument to remain in the marital
home, Cathy cites the case of Spratling v. Spratling.34
Even
though the marital home in Spratling was the only one the child
had lived in,35 we agree with Gary that Spratling is
distinguishable from this case.
In Spratling, there was no debt
owed on the house and further the non-custodial spouse had
received approximately $8,200.00 more in the marital property
division. “[T]he trial court considered that the unpaid interest
. . .
(d) Economic circumstances of each spouse when
the division of property is to become
effective, including the desirability of
awarding the family home or the right to live
therein for reasonable periods to the spouse
having custody of any children.
31
Id.
32
See Colley v. Colley, Ky., 460 S.W.2d 821 (1970).
33
Lykins v. Lykins, Ky.App., 34 S.W.3d 816, 819 (2000).
34
Ky.App., 720 S.W.2d 936 (1986).
35
Id. at 938.
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on this excess would be a reasonable consideration for occupancy
of the house.”36
While such a ruling was authorized in
Spratling, it does not require the same ruling in similar cases.
In this case, there is substantial evidence in the
record that the real estate is not free from debt and that there
has been an equitable division of other marital property between
the parties.
Because the family court made specific findings in
this case as required by CR 52.01, and due to the wide
discretion granted the family court by KRS 403.190(1)(d), we
affirm the family court’s division of the parties’ marital real
estate.
For the foregoing reasons, we affirm the Franklin
Family Court’s order that the marital residence be sold, debts
paid, and proceeds divided; we vacate the portion of the family
court’s joint custody order awarding equal possession of the
parties’ minor children and the portion of the family court’s
order awarding child support and remand these two matters for
further proceedings consistent with this Opinion.
KNOPF, JUDGE, CONCURS.
SCHRODER, JUDGE, CONCURS IN PART, DISSENTS IN PART,
AND FILES SEPARATE OPINION.
SCHRODER, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
36
While I agree with the majority that the trial court
Id.
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should have made specific findings on the appropriateness of
split custody of the children, I disagree that the absence of
such findings in this case is grounds to set aside the trial
court’s judgment in this case.
I recognize that a trial court
must make specific findings regarding the applicable factors
enumerated by KRS 403.270(1) in determining the best interests
of the children.
However, CR 52.04 requires a motion for
additional findings of fact when the trial court has failed to
make findings on essential issues.
Failure to bring such an
omission to the attention of the trial court by means of a
written request will be fatal to an appeal.37
The thread which
runs through CR 52 is that a trial court must render findings of
fact based on the evidence, but no claim will be heard on appeal
unless the trial court has made or been requested to make
unambiguous findings on all essential issues.38
In this case, Cathy’s motion to alter, amend, or
vacate merely requested that the trial court designate her as
the primary residential provider.
She did not ask the trial
court to make specific findings on whether the split custody
arrangement was in the best interests of the children.
Accordingly, I would deem any error waived, and affirm the trial
court on this question.
37
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
38
Eiland v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997).
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-22-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edwin A. Logan
Frankfort, Kentucky
James D. Liebman
Frankfort, Kentucky
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