STACY LEE RATLIFF F/K/A VANHOOSE v. CHRISTOPHER SCOTT VANHOOSE
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RENDERED:
December 23, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-001047-MR
STACY LEE RATLIFF
F/K/A VANHOOSE
APPELLANT
APPEAL FROM JOHNSON FAMILY COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 00-CI-00422
v.
CHRISTOPHER SCOTT VANHOOSE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
KNOPF AND TACKETT, JUDGES; EMBERTON, SENIOR JUDGE.1
KNOPF, JUDGE:
Stacy Ratliff (formerly Vanhoose) and Chris
Vanhoose were divorced by decree of the Johnson Circuit Court
entered August 20, 2001.
1
The decree provides for joint custody
Senior Judge Thomas D. Emberton sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
of the couple’s two children and designates Ratliff as the
residential caretaker.
In early February 2004, Ratliff was
arrested on DUI; theft-by-deception; and trafficking-in-acontrolled-substance charges.2
On February 9, 2004, in the
Johnson Family Court, Vanhoose moved for temporary custody of
the children and obtained an ex parte order giving him immediate
custody pending a hearing on his motion.
The family court
conducted the evidentiary hearing on March 19, 2004.
Although
his motion sought temporary custody, Vanhoose testified at the
hearing that he wanted sole permanent custody.
He presented
evidence tending to show that he would be a fit custodian.
By
summary order entered March 30, 2004, the family court modified
the custody decree by awarding sole custody to Vanhoose and
limited visitation to Ratliff.
Ratliff has appealed.
It is from that order that
She contends that the family court lacked
jurisdiction to modify the permanent custody decree because
Ratliff’s motion put only temporary custody at issue.
Although
we do not characterize the family court’s error as
jurisdictional, we agree with Ratliff that the judgment is
palpably flawed and must be reversed.
As Ratliff notes, KRS 403.280, 403.340, and 403.350
require that motions for temporary custody or to modify a
custody decree more than two years old be accompanied by at
2
Soon after the arrest, the trafficking charge was dismissed.
2
least one affidavit “setting forth facts supporting the
requested order or modification.”3
Our Supreme Court has held
that a motion unaccompanied by the requisite affidavit does not
invoke the trial court’s subject matter jurisdiction.4
Even if
the motion is properly before the court, if the affidavit(s)
fails to allege facts which, if true, would justify relief, the
court should deny the motion summarily.
Only a properly and
adequately supported motion requires a hearing.5
KRS 403.280 provides that the trial court may award
temporary custody if it determines that the award is in the best
interest of the child.
KRS 403.340, however, provides that an
existing permanent custody decree shall not be modified unless
the movant establishes that either the child’s or the
custodian’s circumstances have changed, and that the
modification would be in the child’s best interest.
In
determining the child’s best interest, the court is required to
consider
(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;
3
KRS 403.350.
4
Petrey v. Cain, Ky., 987 S.W.2d 786 (1999).
5
KRS 403.350; Petrey v. Cain, supra.
3
(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.
Vanhoose’s motion for temporary custody was
accompanied by the affidavit required to invoke the family
court’s subject matter jurisdiction.
The affidavit alleged
facts, Ratliff’s arrest, suggesting that an award of temporary
custody may be in the best interest of the children.
Thus the
court properly ordered a hearing on the temporary custody
motion.
The mere charges against Ratliff, however, by
themselves, did not permit an inference that Ratliff’s
circumstances had significantly changed.
Had Vanhoose’s motion
sought a modification of the custody decree, therefore, it
should have been summarily denied.
The evidentiary hearing did not change that result.
While it is true that our rules allow for the liberal amendment
of pleadings to conform to the issues actually litigated, an
amendment should not be allowed if it unfairly prejudices the
opposing party.6
Vanhoose was permitted, in effect, to amend his
pleading at the hearing to seek permanent rather than temporary
6
CR 15.02; Kroger Company v. Jones, Ky., 125 S.W.3d 241 (2004).
4
custody.
Ratliff did not consent to the change.
Although she
argued against the amended motion on its merits, she did so only
after objecting to the introduction of issues that had not been
pled.
The lack of notice, furthermore, denied Ratliff a fair
opportunity to martial her case.
The amendment was unfairly
prejudicial and should not have been allowed.
Even on its merits, moreover, Vanhoose’s motion to
modify the custody decree should have been denied.
As noted
above, the affidavit accompanying the motion did not allege
grounds justifying such a modification.
Vanhoose’s evidence at
the hearing likewise tended to show only that he was capable of
caring for the children.
change of circumstance.
He made no showing of a permanent
Nor did he introduce any evidence
tending to show that the current custody arrangement seriously
endangered the children.
Although such evidence is no longer
necessary to justify a change of custody, it remains an
important consideration the family court is required to
consider.
Because Vanhoose failed to meet the heightened
standard KRS 403.340 imposes for the modification of a custody
decree, he was not entitled to that relief.
Finally, KRS 403.340 requires the court modifying a
custody decree to enter findings supportive of the change.
family court’s summary order included no findings.
5
The
This error,
at least in conjunction with the court’s apparent misapplication
of the controlling standards, also merits reversal.7
In sum, although Vanhoose may have been entitled to an
award of temporary custody while the charges against Ratliff
were resolved, he did not properly raise the issue of custody
modification, and did not make the heightened showing required
to justify a permanent modification of the former couple’s
custody decree.
Accordingly, we reverse the March 30, 2004,
order of the Johnson Family Court and remand for reinstatement
of the original joint custody decree.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lance A. Daniels
Paintsville, Kentucky
Wesley W. Duke
Paintsville, Kentucky
7
McFarland v. McFarland, Ky. App., 804 S.W.2d 17 (1991).
6
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