STACEY K. BLAKE (NOW HATCH) v. RONALD E. BLAKE
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APRIL 14, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002446-MR
STACEY K. BLAKE (NOW HATCH)
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 03-CI-00113
v.
RONALD E. BLAKE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND SCHRODER, JUDGES; MILLER, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
Stacey K. Blake (now Hatch) (hereinafter
“Stacey”) appeals from an opinion and order entered July 21,
2004, adopting the recommendations of the Domestic Relations
Commissioner (hereinafter “DRC”) that awarded the parties joint
custody of their minor daughter with the father, Ronald E. Blake
(hereinafter “Ron”), being the primary custodian and the child
living primarily with her father.
1
We affirm.
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
The parties hereto were married on April 8, 1995.
Madeline Irene Blake (hereinafter “Madeline”) was born on March
24, 1998.
The parties subsequently separated on December 1,
2002, and Stacey filed a petition for dissolution on April 16,
2003.
Ron, who was not represented by counsel, filed an entry
of appearance at that time.
On May 6, 2003, a settlement
agreement was filed with the court.
The agreement resolved all
pending issues relative to the dissolution.
As to custody, the
parties agreed as follows:
CUSTODY
The parties acknowledge that they are
[the] parents of one (1) minor child,
MADELINE IRENE BLAKE, date of birth 3/24/98,
Social Security Number []. The parties
agree that they shall share joint legal
custody with said minor child with the minor
child primarily residing with the Wife in
Charlotte, North Carolina.
Section 5 of the agreement dealt with timesharing of the child
and awarded significant and detailed amounts of time when Ron
would have Madeline in his custody.
Furthermore, the agreement
called for each party to drive approximately half way and meet
in “Sevierville, Tennessee for the purpose of exchanging the
minor child for timesharing.”
And in Section 6 of the
agreement, the parties agreed to deviate from the child support
guidelines (KRS 403.212) because of the “increased amount of
timesharing which [Ron] shall be having with the minor child.”
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On July 15, 2003, Stacey filed a motion to submit the
matter to the circuit court for ruling based upon the Deposition
Upon Written Interrogatories which she filed at the same time.
And on August 13, 2003, the court entered its recommended
findings of fact, conclusion of law and decree granting the
dissolution.
In relevant part, the decree of dissolution
stated:
3.
That the Settlement Agreement entered
into by the parties on May 1, 2003, and
filed of record herein on May 6, 2003,
has been reviewed by the Court and the
same is determined not to be
unconscionable and the same is hereby
incorporated into this Decree as if
fully set forth.
4.
That custody of the minor child of the
parties, Madeline Irene Blake, date of
birth 3[/]24/98, SSN: [], be awarded
jointly to [Stacey] and [Ron] with the
said minor child primarily residing with
[Stacey] in Charlotte, North Carolina.
5.
That the parties shall share time with
said minor child in accordance with the
timesharing schedule set forth in the
Settlement Agreement.
Immediately after the decree was entered, events occurred which
led the court to eventually enter an order naming Ron as the
primary residential custodian that is the source of this appeal.
On August 25, 2003, Ron filed a motion to alter, amend
or vacate under CR 59.05, or in the alternative a CR 59.01
motion for a new trial.
The motions addressed the issues of
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child custody, support and timesharing.
Ron alleged in his
motion that on August 18, 2003, Stacey contacted him and
informed him that she was quitting her job in North Carolina,
taking her children (Madeline and another child she had by a
previous marriage), and moving to California to live with a man
she had first met on July 4, 2003.2
The motion argued that:
It would be a manifest injustice to
require Ron to honor a Decree, which became
obsolete within days, if not hours, of its
entry.
Ron asks the Court to alter, amend or
vacate pursuant to CR 59.05 those portions
of the final decree pertaining to Madeline,
and award him sole custody of the parties’
minor child. In support, Ron states that
the entire agreement that the parties
painstakingly worked out regarding Madeline
is useless. The purpose of the Agreement
was to provide a structure for decisionmaking, joint legal custody, and a
timesharing arrangement, worked out in great
detail, both of which have been unilaterally
violated and ignored by Stacey. The
provisions regarding custody have become
irrelevant, the provisions regarding
timesharing are impossible given the
distance and the provisions regarding child
[support] are now incorrect.
In the alternative, Ron requests that
the Court order a new trial pursuant to
Civil Rule 59.05 (sic) and implement the
structures requested in 2a-e, until the new
trial may be held.
In support, Ron states that the
Agreement and Decree provided for joint
custody with Madeline and Stacey living in
2
That individual is Don Hatch who she subsequently married.
-4-
North Carolina. It made no provision for
Stacey or Madeline living anywhere else. If
Ron had known that within a mere six days of
finalization of the divorce that Stacey
would relocate to California, he never would
have executed the Agreement or allowed the
divorce to go forward. Learning that Stacey
was relocating to California with their
child came as a surprise and incredible
shock to Ron. Prior to Monday, August 18,
2003, Stacey had never mentioned moving to
California. All discussions, and actions
between the parties, had centered on the
relocation to North Carolina. Suddenly, on
August 19, 2003, Stacey informed Ron that
she was taking Madeline to California.
This information also constitutes newly
discovered evidence that Ron could not
possibly have known about prior to the entry
of the Decree. No one shared the
information with him until after the divorce
was final. If Ron had known, he would not
have executed the Agreement or authorized
the divorce to be finalized.
The motions were scheduled for a hearing on September
10, 2003.
The docket sheet signed by the judge on that date
states, “send back to Domestic Relations Comm. to hear as to the
change of circumstances.
Plaintiff [Stacey] ordered to comply
with Decree and agreement as set forth.”
Thereafter, on
September 30, 2003, the court entered a written order which
addressed Ron’s motions and stated:
This cause having come before the Court
upon the Respondent’s motion to alter, amend
or vacate judgment or, in the alternative,
for a new trial, with respect to the issues
of custody, the Petitioner having appeared
by counsel and the Respondent having
-5-
appeared in person and by counsel, and the
Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED AND ADJUDGED as
follows:
1. The Court does not grant the Motion to
alter, amend or vacate the Decree, but
hereby directs this matter to the Domestic
Relations Commissioner for an evidentiary
hearing to determine if there are sufficient
grounds to change the Decree with respect to
custody maters(sic); and
2. The Petitioner is directed to comply
with the existing Decree with respect to
visitation in all respects.
While the order denied the motion to alter, amend or vacate (CR
59.05), it did not directly rule on the alternate motion for a
new trial (CR 59.01) but did direct the matter to the DRC for an
evidentiary hearing with respect to the custody issue.
A hearing was held before the DRC on November 10,
2003.
However, the record does not contain a written or video
transcript of said hearing and Stacey’s certification of record
on appeal filed July 29, 2005, does not reference this hearing.
Following the hearing, each party filed a brief memorandum with
the DRC stating their position as to the custody issue.
On May
13, 2004, the DRC entered his recommendations in the record.
The DRC found that Stacey acted in bad faith by concealing her
intent to move to California within days of the decree being
entered.
He further found that Stacey’s move to California made
it impossible for the parties to comply with the basic premises
-6-
(joint custody and liberal visitation) upon which the custody
and visitation agreement had been based.
Based upon these
findings, the DRC determined that the agreement as it relates to
custody and visitation should be set aside.
Once the DRC set aside those portions of the
agreement, he stated that the issue to now be decided was
custody under KRS 403.270.
As to custody, the DRC made the
following findings:
The Commissioner having recommended
that setting aside of the agreement, the
issue then becomes custody under KRS
403.270. As in most cases it is obvious
that both parties love their child and it is
obvious that the child loves both parents.
When reviewing the elements of KRS 403.270,
the parties are equal in the Commissioner’s
mind until one gets to the mental health of
the parties. The problem here is that
[Stacey], while negotiating a move to North
Carolina to be close to her family which
[Ron] thought would benefit the child,
announces plans within just a few days of
her decree being entered that she and [her]
daughter along with her son which [Ron] is
not the father of, are going to move across
the country so that she may marry a man she
met in July of that year and whom her
daughter had only met once. The fact that
[Stacey] wanted to remarry and move to
California is not troubling. The troubling
issues are one, it appears that [Stacey]
intended on doing this but concealed it
until the decree was signed and two, the
speed in which [Stacey] made such decision
as to her willingness to make major changes
in the young child’s life at what appears to
be at a drop of a hat. This clearly shows
the lack of stability that [Stacey] has and
her willingness to put her happiness utmost
-7-
before reviewing the possible effects on the
child.
Based upon the above findings the DRC recommended the parties be
awarded joint custody with Ron being named primary care
custodian with the child living primarily with him.
Stacey filed exceptions and objections to the DRC’s
report.
In an opinion and order entered July 21, 2004, the
circuit court denied Stacey’s exceptions and objections and
adopted the recommendation of the DRC.
Stacey then filed a
timely CR 59.05 motion to alter, amend or vacate which the
circuit court denied on October 29, 2004.
This appeal followed.
On appeal, Stacey argues that the circuit court’s
opinion and order was entered in error because it “failed to
give recognition to the principles enunciated by the Supreme
Court of Kentucky in Fenwick v. Fenwick, Ky., 114 S.W.3d 767
(2003).”
Stacey contends that Ron’s objections to her
relocating to California amounted to a custody modification and
KRS 403.340 and Fenwick are applicable.
Fenwick held in
relevant part:
Although the relocation will, as a practical
matter, impact a non-primary residential
custodian’s ability to share physical
custody of the children, the relocation does
not extinguish the non-primary residential
custodial parent’s rights with regard to
shared physical custody, nor would the
relocation affect the essential nature of
the joint custody – i.e., the parents’
shared decision-making authority. Thus, a
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non-primary residential custodian parent who
objects to the relocation can only prevent
the relocation by being named the sole or
primary residential custodian, and to
accomplish this re-designation would require
a modification of the prior custody award.
He or she must therefore show that “[t]he
child’s present environment endangers
seriously his physical, mental, moral, or
emotional health, and the harm likely to be
caused by a change of environment is
outweighed by its advantages[.]”
. . . .
We realize that relocation often causes
a hardship or inconvenience on the
noncustodial parent’s ability to exercise
time-sharing with his or her child, but that
fact, in itself, does not constitute a valid
reason to prohibit relocation. Modern
American society is increasingly mobile, and
therefore, as the Wilson [v. Messinger, 840
S.W.2d 203 (Ky. 1992)] Court stated, “a
custodial parent cannot, in today’s mobile
society, be forced to remain in one location
in order to retain custody.” We agree with
this observation in Wilson and would add
that the realities of today’s mobile society
should also militate against de facto
limitations – such as tying the primary
residential custodian designation to
willingness to remain in a particular
location – on primary residential
custodians’ ability to relocate.
Fenwick, 114 S.W.3d at 786, 788-89.
(footnotes omitted).
(Emphasis in original);
KRS 403.340 sets forth several factors
which the court must consider in addressing custody
modification.
Ron, on the other hand, argues that the circuit court
was not modifying custody but actually determining custody after
-9-
having set aside the separate agreement relative to custody.
In
fact, the circuit court’s July 21, 2004, opinion and order
states:
As a result of that hearing on May 13,
2004, the DRC issued his recommendations in
which he discussed the issue of whether
there was a valid settlement agreement
concerning custody and visitation and
whether the father had met his burden to
justify a modification of custody. The DRC
found that there was not a valid settlement
agreement, because Petitioner had withheld
the information that she was moving to
California from Respondent and the Court and
had acted in bad faith. The DRC recommended
that the settlement agreement as to custody
and visitation be set aside. After making
that decision, the DRC reviewed the custody
issue as an initial custody decision and not
as a modification of a prior custody
settlement. The DRC recommended that the
parties retain joint custody with the father
being the primary custodian and the child
living primarily with her father. The basis
of his recommendation was the lack of
stability shown by Petitioner’s decision to
move to California “at the drop of a hat”
and concealing information from Respondent
and the Court. Petitioner objects to that
determination. (Emphasis added).
The filing of timely CR 59.01 and CR 59.05 motions by
Ron prevented the August 13, 2003, decree from becoming final.
This issue was recently addressed in Gullion v. Gullion, 163
S.W.3d 888 (Ky. 2005).
Gullion, like this case, involved a
custody ruling that was challenged by the filing of a CR 59.05
motion.
In Gullion, the Kentucky Supreme Court held:
-10-
CR 59.05 states that “[a] motion to
alter or amend a judgment, or to vacate a
judgment and enter a new one, shall be
served not later than 10 days after entry of
the final judgment.” The language of the
rule contains no affidavit requirement.
However, this Court has made clear that a
ruling on a post-judgment motion is
necessary to achieve finality, and
procedurally, a CR 59.05 motion stays
finality until the motion is ruled upon.
[See, Kurtsinger v. Bd. of Trs. Of Kentucky
Ret. Sys., 90 S.W.3d 454, 458 (Ky. 2002)].
CR 59.05 may be used to dispute an order or
judgment a party believes to be incorrect,
and a trial court has “unlimited power to
amend and alter its own judgments.”
The requirements of CR 59.05 and that
of KRS 403.340 are entirely different
procedurally with regards to jurisdiction
and finality. As such, each must be allowed
to individually serve its own purpose. The
reasoning of Dull v. George, [982 S.W.2d
227, 229 (Ky.App. 1998)] supports the
proposition that if affidavits are not
required for CR 60.02 motions, then likewise
they should not be required for CR 59.05
motions. And we hereby adopt that reasoning
upon the premise that CR 59.05 permits the
trial court to continue jurisdiction over
its orders while the motion is pending.
While jurisdiction under a KRS 403.340
motion to modify custody order is exerted
only when the requirements of that statute
are met, there is no conflict between KRS
403.340 and CR 59.05 because the affidavit
requirements of KRS 403.340 are not
implicated unless the original custody order
is final and the CR 59.05 motion has been
ruled upon. Simply put, a custody
modification cannot be requested unless
there is a final custody order to modify.
It is not within the province of this Court
to create or apply statutory requirements in
contravention to long established procedural
rules.
-11-
Gullion, 163 S.W.3d at 891-92.
(Footnotes omitted).
Ron filed
a timely motion for the court to reconsider the previously
entered decree as to the custody issue thus preventing the
decree from becoming final.
Although the court’s order of
September 30, 2003, denied Ron’s motion to alter, amend or
vacate (CR 59.05) it did not dispose of his alternate motion for
a new trial (CR 59.01) on the custody, support and timesharing
issues.
Instead that motion was referred back to the DRC “for
an evidentiary hearing to determine if there are sufficient
grounds to change the Decree with respect to custody
mat[t]ers[.]”
Once the matter was referred back to the DRC, new
hearings were held as to the validity of the separation
agreement and the custody of Madeline.
Both the DRC’s
recommendations and the circuit court’s opinion and order
clearly reference that they were addressing this as an initial
custody determination under KRS 403.270.
We believe this was
the proper legal standard to be applied in this matter.
Gullion, supra.
See
Further review of the DRC’s recommendations
indicates that the DRC considered the relevant nine factors in
determining custody pursuant to KRS 403.270(2).
The DRC report
specifically found the parties equal parents in all aspects
except as to Stacey’s mental health.
-12-
In reviewing the DRC’s
recommendations, the circuit court adopted the finding that
Stacey’s actions raised legitimate concerns about her
suitability as the primary custodian.
In that these findings
were based upon substantial evidence found in the record they
will not be disturbed on appeal.
For the foregoing reasons the July 21, 2004, and
October 29, 2004, opinions and orders for the Woodford Circuit
Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael R. Moloney
Lexington, Kentucky
Sheila M. Donovan
Lexington, Kentucky
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