JONI WISER ALLEN WOLFORD v. DAVID KEVIN ALLEN
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RENDERED:
FEBRUARY 3, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002163-ME
JONI WISER ALLEN WOLFORD
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
CIVIL ACTION NO. 03-CI-00209
v.
DAVID KEVIN ALLEN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MINTON, JUDGES.
MINTON, JUDGE:
The custody decree gave Kevin Allen sole legal
custody of his five-year-old son.
Four months later, Joni
Wolford, the boy’s mother, moved to modify the decree to
transfer sole custody of the child to her.
The affidavits in
support of Joni’s motion alleged that Kevin had turned the boy
over to Kevin’s parents, David and Judy Allen, who were acting
as de facto custodians.
The trial court denied the motion,
noting that the decree required Kevin to raise the child in the
home of his parents.
We affirm.
Joni and Kevin Allen were divorced by decree entered
May 24, 2004.
The custody of their young son, Austin, was the
only contested issue in the divorce proceeding.
After hearing
testimony presented by each side, the trial court awarded Kevin
“the absolute custody, care[,] and control of the minor child of
the parties” but required that the child “be raised in the home”
of David and Judy Allen.
In comments made from the bench
explaining the court’s reasoning, the trial judge noted that the
child had been living with Kevin in David and Judy’s home since
his birth.
The judge also noted that Kevin was a trucker and
that David and Judy cared for the child while Kevin was away
from home on the road.
Under the trial court’s custody
arrangement, David and Judy would be able to continue to provide
care in Kevin’s absence as they had been doing.
Joni did not
appeal from the custody decree.
Joni filed the motion to change custody on
September 27, 2004.
In support of the motion, Joni submitted
her own affidavit and one from her new husband, Keith Wolford.
The affidavits provided the trial court with no new facts except
that Joni and Keith, whose relationship had been the subject of
testimony at the custody hearing, had married in the interim and
that they were now able to provide “a stable home for Austin.”
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Both affidavits repeated the statement that “[Kevin] Allen is
now driving a truck, and is gone for extended durations of time,
leaving the child solely in the care of David Allen, Sr. and
Judy Allen.”
Joni did not present any facts to support a
finding that Kevin’s or Austin’s circumstances had changed in
any respect since the entry of the decree.
Addressing the fact
that Kevin was leaving his parents to tend to Austin while he
was on the road, the trial court responded that “[h]e’s doing
exactly what I said to do . . . .”
Joni’s motion to modify.
The trial court denied
She then filed this appeal.
KRS1 403.340 governs modification of a custody decree.
The legislature significantly changed that statute in 2001.2
Before the amendment, a change in custody required a finding
that (1) substantial harm would result to the child’s physical,
mental, or emotional health without a change in the custodial
arrangement; and (2) any harm caused by the change would be
outweighed by its advantages.3
By amending the statute, the
General Assembly not only relaxed the standards for modification
of custody; but it also expanded the factors to be considered
when modification is requested.4
The statute now permits
1
Kentucky Revised Statutes.
2
See Fowler v. Sowers, 151 S.W.3d 357 (Ky.App. 2004).
3
Id. at 359.
4
Id.
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modification “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” if “a change has occurred in the
circumstances of the child or his custodian” and if “the
modification is necessary to serve the best interests of the
child.”5
In the case at hand, the trial court rather quickly
determined that Joni had not sufficiently shown the court facts
indicating a change in Kevin’s or Austin’s circumstances in the
four months that had elapsed since the entry of the custody
decree.
Absent such change in circumstances, the trial court
concluded that further litigation of the issue of modification
was not warranted.
The trial court did not abuse its discretion
in denying the motion.
Therefore, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew B. DeHart
Jamestown, Kentucky
Theodore H. Lavit
Joseph R. Stewart
Lebanon, Kentucky
5
KRS 403.340(3).
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