MURPHY (JENNIFER J.) VS. MURPHY (OAKLEY DWAYNE)
Annotate this Case
Download PDF
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002298-ME
JENNIFER J. MURPHY (NOW PARK)
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEFFREY WALSON, JUDGE
ACTION NO. 03-CI-880
OAKLEY DWAYNE MURPHY
APPELLEE
OPINION
AFFIRMING IN PART;
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL
JUDGE.
NICKELL, JUDGE: Jennifer J. Murphy (now Park) (“Park”), pro se, appeals an
order of the Madison Circuit Court sustaining Oakley Dwayne Murphy’s
(“Murphy”) verified motion to modify custody of their three minor children. Park
claims the trial court erred in convening the modification hearing in her absence
1
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
and in awarding Murphy sole custody of their children without making the findings
of fact required by KRS2 403.340(3). Park maintains she did not receive notice of
the September 28, 2007, hearing because Murphy served it on an attorney she had
discharged in June of 2007 and that attorney forwarded the notice to her at an old
address. Park claims service should have been made upon her directly because she
had told Murphy she could no longer afford legal counsel and he had been to her
home so he knew where she was living. After reviewing the record and the law,
we reverse the custody modification and remand the matter to the trial court for a
hearing and the statutorily required findings.
THE FACTS
Park and Murphy married in 1995 and had three children. On
December 16, 2003, an agreed order was entered giving them joint custody of the
children with equal timesharing. A separation agreement filed by the parties on
May 19, 2005, designated Murphy as the primary residential custodian and gave
the parties equal timesharing. The children were to rotate between Park and
Murphy every three days.
On May 9, 2006, represented by Hon. Sean Pierson (“Pierson”),
Murphy moved the court to hold Park in contempt for not paying debts. On May
23, 2006, Park, now represented by Hon. Billie Sue Woolley (“Woolley”), filed a
verified response and a countermotion seeking a change in the summer visitation
schedule. On June 1, 2006, Murphy asked the court to set a specific visitation
2
Kentucky Revised Statutes.
-2-
schedule. On June 26, 2006, following a hearing, the court entered judgment in
favor of Murphy and referred child support and timesharing issues to mediation.
Woolley moved to alter, amend or vacate the judgment on Park’s behalf on July
21, 2006. Following a hearing at which Woolley represented Park, an order was
entered amending the July 11, 2006, judgment and crediting Park with payment of
medical bills; overruling Park’s motions to be credited with paying daycare
expenses and to be awarded child support; overruling Murphy’s request to modify
visitation; and ordering both parents to rotate visitation with the children every
three days. After the order amending the judgment was entered on August 24,
2006, Woolley did not move to withdraw from the case, nor did she advise the
court or opposing counsel she no longer represented Park.
More than a year later, Murphy moved to modify custody by filing a
verified motion and noticing the matter to be heard on September 28, 2007. Since
Woolley was still Park’s attorney of record, Pierson mailed the motion/notice to
Woolley consistent with CR3 5.02. The motion/notice was filed by the trial court
on September 6, 2007. On September 19, 2007, Woolley filed a “notice of
nonrepresentation” with the court stating she no longer represented Park but had
mailed a copy of the pending motion to her former client “on or about September
10, 2007 to her last known address at 124 Longview, Richmond, KY 40475.” The
notice provided no further details and was served only on Pierson as opposing
3
Kentucky Rules of Civil Procedure.
-3-
counsel. Woolley did not send a copy of the notice of nonrepresentation to Park
nor did she contact Park via e-mail.
The court convened the modification hearing on the morning of
September 28, 2007. Murphy and Pierson were present; Park was not and neither
was Woolley or anyone representing Park’s interests. The court stated that despite
Woolley having filed a notice of nonrepresentation, she was still Park’s attorney of
record and Pierson had correctly served the motion/notice upon Woolley as
counsel of record for Park. When the court asked Murphy where he believed Park
resided, Murphy candidly said Park had moved a couple of times since their last
court appearance, but he believed her to be living at 209 Palm Hill Drive,
Richmond, Kentucky.4
The court stated it hoped Park had received notice of the hearing and
permitted Pierson to state his client’s grounds for asking to modify custody.
Thereafter, the court said it saw no need to take proof in Park’s absence; stated
Murphy had followed the rules regarding the giving of notice; and sustained the
motion to modify custody “in [Park’s] absence.” Park learned of the modification
that afternoon when she called Murphy to finalize plans for the children’s care that
evening. At that point, Murphy told Park she should speak to her attorney and said
he would be picking up the children. A written order, containing no findings of
4
The record contains variations of this address. For consistency we will use the address Park
typed in her June 29, 2007, e-mail to Woolley, “209 Palm Hill Drive.”
-4-
fact and sustaining Murphy’s motion to grant him sole custody, was entered on
October 3, 2007.
Park says she received the notice Woolley mailed to her on or about
October 4, 2007. The next day, acting pro se, Park moved to alter, amend or
vacate5 the custody modification order alleging she did not receive timely notice of
the hearing, she had discharged Woolley in June of 2007, and she had given
Woolley her current mailing address. Park further alleged she had told Murphy
she could no longer afford an attorney and Murphy knew her current address so he
could have sent notice to her directly. Park urged the court to vacate the
September 28, 2007, order or alternatively, order temporary visitation and set a
hearing date. That same day, Park responded to Murphy’s motion to modify
custody and filed her own motion to modify custody. Attached to the
response/motion was the e-mail Park sent to Woolley on June 29, 2007, saying in
part:
Billie Sue,
I am sending you this email with much regret. Next
month I am going to have to file bankruptcy. I can not
(sic) pay the bill that I owe you. . . . We have had to
move 2 times since then. At this time we don’t have a
home, we are staying with family.
...
I want you to know that I am very sorry. I do not
know if you would want to send the paper to Madison
county (sic) relieving yourself as my attorney. He is
5
CR 59.05.
-5-
always threatening to take me back to court but the next
time he does I will have to represent myself.
Like I said, I am very sorry but this is my only choice.
You can forward any mail to me at 209 Palm Hill
Drive (sic) Richmond, KY (sic) 40475, this is my
parents, or you can email me anytime.
Regretfully,
Jenny Park
The motion to alter, amend or vacate was heard on October 15, 2007. Park
appeared pro se. The court asked her why Woolley, who was still her attorney of
record, was not present. Park responded she did not need an attorney and alleged
Woolley did not return her phone calls and did not present details about Murphy
she deemed relevant. Pierson stated Murphy opposed Park’s motion to alter,
amend or vacate the custody modification because at the time of the previous
hearing and entry of the modification order, Woolley was still Park’s attorney of
record and therefore service was properly made upon Woolley. Pierson also
suggested the court issue a show cause order to Woolley to learn her version of the
events.
After hearing from both parties, the court noted Murphy filed his
verified motion to modify custody in good faith and complied with CR 5.02 in
serving notice on Woolley. The court stated the notice of nonrepresentation filed
by Woolley had no legal value since an attorney must receive permission from the
trial court before withdrawing from a case and Woolley had not moved the court to
-6-
allow her to withdraw from representing Park. Since notice of the hearing was
mailed to Woolley with sufficient advance notice, the court overruled Park’s CR
59.05 motion. The court entered a written order on October 17, 2007, overruling
Park’s motion to alter, amend or vacate and referring her request for temporary
visitation to mediation.
On October 22, 2007, Woolley submitted an affidavit stating: (1)
Park hired her for the limited purpose of responding to Murphy’s motion to set a
specific visitation schedule in April of 2006;6 (2) Woolley’s representation of Park
ended when an amended judgment was entered resolving the visitation issue; (3)
Woolley subsequently received an e-mail from Park saying she was unable to pay
for Woolley’s legal services, was filing bankruptcy, and provided a new mailing
address; (4) Park’s new address, 209 Palm Hill Drive, Richmond, Kentucky, was
not entered into Woolley’s computer system due to a “clerical error”; and (5) when
Woolley received Murphy’s motion/notice of hearing to modify custody, she
mailed a copy of it to Park, notified Murphy’s attorney she was no longer
representing Park but had mailed a copy of the motion/notice to Park at 124
Longview, Richmond, Kentucky, and filed a notice of nonrepresentation with the
court and served a copy of it on opposing counsel. The letter Woolley mailed to
Park was not returned to Woolley’s office, but was forwarded twice by the post
6
Murphy disputes Woolley’s statement that she was hired to represent Park only on Murphy’s
motion to set a specific visitation schedule. The record shows Woolley represented Park in May
of 2006 on Murphy’s motion to hold Park in contempt for failure to pay debts and again in June
of 2006 on the motion to set a specific visitation schedule.
-7-
office and ultimately reached Park at the 209 Palm Hill Drive address on October
4, 2007. Woolley, apparently attempting to excuse her own oversight, said in her
affidavit it seemed reasonable to her that Murphy would have noticed the bad
address and notified the court of her mistake.
On November 9, 2007, an agreed parenting schedule signed by Park
and Murphy was entered designating Murphy as the primary residential custodian
and giving Park weekend and Wednesday night visitation with the children. That
same day, Park, now represented by Hon. Elizabeth Elkins Bond (“Bond”),
renewed her motion to alter, amend or vacate the court’s order giving sole custody
to Murphy. In a separate pleading filed the same day, Bond moved the court to
appoint a guardian ad litem (“GAL”) to represent Park.
On November 13, 2007, while her renewed motion to alter, amend or
vacate was pending, Park filed a notice of appeal to this Court. At a hearing on
November 19, 2007, the trial court overruled Park’s renewed motion to alter,
amend or vacate, and also overruled the motion for appointment of a GAL for want
of jurisdiction since the case was now on appeal to us. Two days later the trial
court entered a formal written order overruling Park’s motions.
On November 21, 2007, Woolley moved the trial court to allow her to
withdraw from the case because Park had discharged her on or around June 29,
2007. An order allowing Woolley to withdraw was entered on December 3, 2007.
For the reasons that follow, we affirm in part but reverse the custody modification
-8-
and remand the matter to the trial court for the required hearing and findings of
fact.
ANALYSIS
Our standard of review in a custody modification case is found in CR
52.01.
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 . . . . 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.
As stated in Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974) (citing Hamilton v.
Hamilton, 458 S.W.2d 451 (Ky. 1970)), “the test is . . . whether the findings of the
trial judge were clearly erroneous or he abused his discretion.”
Park’s first allegation of error is the trial court convened the custody
modification hearing without first finding Murphy’s verified motion warranted a
hearing. In contrast, Murphy argues he recited sufficient facts to justify holding a
hearing. After reviewing Murphy’s verified motion, we are convinced Murphy
alleged sufficient grounds to justify holding a hearing. Thus, we find no error
regarding this claim and affirm.
In Park’s second allegation of error, she claims the trial court
erroneously allowed the hearing to go forward in her absence knowing her receipt
of notice was highly questionable. She claims the motion/notice should have been
served upon her directly because Woolley filed a notice of nonrepresentation
-9-
stating she no longer represented Park; Park had told Murphy she could no longer
afford an attorney; and Murphy knew Park’s current address. Park alleges she
learned of the September 28, 2007, hearing from Murphy after the court had
awarded sole custody of their children to him. She further alleges she did not
receive actual notice of the motion to modify custody and the hearing until October
4, 2007. In contrast, Murphy urges us to affirm because he complied with CR 5.02
in serving notice on Woolley, as Park’s attorney of record, and the validity of that
service did not turn on Park receiving actual notice. Benson v. Benson, 291
S.W.2d 27, 30 (Ky. 1956). We agree with Park and reverse for lack of notice.
KRS 403.350 mandates a party seeking custody modification “shall
give notice, together with a copy of his affidavit, to other parties to the proceeding,
who may file opposing affidavits.” CR 5.02 specifies when service is to be made
upon a party represented by counsel, “service shall be made upon the attorney
unless service upon the party himself is ordered by the court.” Normally, once an
attorney appears in a case, he/she remains attorney of record until the trial court
grants a motion to withdraw.7 However, a niche has been carved for service of a
post-divorce decree motion upon the divorce litigation attorney. In that situation,
7
Local Rule 16.02 of the Madison Circuit Court reads:
Withdrawal as Counsel: When an attorney of record desires to
cease to act for a party, he/she should move the Court to allow
him/her to withdraw as attorney of record. Such motion shall be
served on the party as provided by Rule 5 of the Kentucky Rules of
Civil Procedure. Until an order allowing withdrawal is entered, the
attorney of record shall continue for all proper purposes.
See also U.S. v. Curry, 47 U.S. 106, 6 How. 106, 111, 12 L.Ed. 363 (1848).
-10-
the provision of CR 5.02 requiring that service of a
motion be made upon the attorney of a party ‘represented
by an attorney’ clearly contemplates currency and
continuity of litigation and representation. It is our
opinion that in a divorce case representation by [an]
attorney is not to be deemed to have continued for the
purpose of service in connection with proceedings for
modification of the judgment upon a change of
conditions, after the case otherwise has been finally
concluded.
Guthrie v. Guthrie, 429 S.W.2d 32, 35 (Ky. 1968) (emphasis added). Thus, as a
matter of law, conclusion of the divorce action terminated the attorney-client
relationship between Woolley and Park and sending notice to Woolley did not
effectuate service upon Park as Murphy contends.
Furthermore, while there is no provision in our rules for the filing of a
notice of nonrepresentation, and no case law explaining its effect, Woolley’s filing
of such a document, though not required in light of Guthrie, supra, put the court
and opposing counsel on notice that Woolley no longer represented Park. At that
point, a new hearing date should have been set and service of the motion/notice
should have been made directly upon Park as provided for in CR 5.02. It was clear
error for the trial court to proceed with the hearing in Park’s absence and without
some assurance Park knew the custody modification hearing was occurring. Thus,
we reverse for lack of notice.
Park’s third allegation of error is that the trial court modified custody
without finding a change of circumstances in the children and/or their custodian
and that modification was in the best interests of the children as required by KRS
-11-
403.340(3). Additionally, in determining the best interests of the children, the
court did not indicate it had considered any of the factors enumerated in KRS
403.340(3) or KRS 403.270(2). Murphy argues Park waived any complaint about
the lack of findings because she did not move the court to make more specific
findings under CR 52.02 or CR 52.04. Cherry v. Cherry, 634 S.W.2d 423 (Ky.
1982). We agree with Park and reverse and remand for a hearing and the
statutorily required findings.
We set forth the trial court’s order modifying custody in its entirety:
This cause having come on for a hearing on
September 28, 2007, and [Park] having failed to appear,
and [Murphy] having been present, it is ORDERED,
ADJUDGED and DECREED as follows:
1. The motion of [Murphy] to modify custody is
hereby GRANTED.
2. [Murphy] shall be awarded the sole care,
custody and control of the minor children, namely,
[MLM, SKM and KJM].
DONE and ORDERED this 28th day of Sept.,
2007.
While brevity is appreciated, this order does not comport with the requirements of
KRS 403.340(3). Were we to affirm this order, with its complete absence of any
of the required findings, we would be giving our imprimatur to what amounts to a
default judgment. There were no affidavits, no testimony and no findings by the
trial court. We note that other jurisdictions, including Alabama and Missouri, have
held default judgments in child custody proceedings should be subject to strict
-12-
judicial scrutiny and affirmed only when compelled by the facts. See, e.g., Dozier
v. Dozier, 222 S.W.3d 308 (Mo.Ct.App. 2007); Buster v. Buster, 946 So.2d 474
(Ala. Civ.App. 2006) (plurality opinion). Strict adherence to procedural rules
should not take precedent over the court’s duty to protect a parent’s right to
custody and its ultimate role of serving the best interest of the child. Only after a
hearing when both parties have the opportunity to present evidence can the court
render such a crucial decision. Thus, under the facts before us, it was clear error
for the trial court to modify custody without engaging in the mandated statutory
analysis and reducing its required findings to writing.
For the reasons expressed above, the order of the Madison Circuit
Court is affirmed in part, reversed in part and remanded for a hearing and required
findings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jennifer J. Park, pro se
Richmond, Kentucky
Sean M. Pierson
Richmond, Kentucky
-13-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.