SPEARS (LORI LEA) VS. SPEARS (GREGORY LEE)Annotate this Case
RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
LORI LEA SPEARS, NOW MATHIS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 03-CI-00008
GREGORY LEE SPEARS
AFFIRMING IN PART,
REVERSING IN PART,
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
ACREE, JUDGE: Lori Spears, now Mathis (Mother) appeals a Boyd Circuit Court
order modifying custody in favor of her former husband, Gregory Spears (Father).
The original order incorporated agreements between Mother and Father and
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
provided for joint custody of their daughters, with Mother acting as primary
residential custodian. Less than one year later, Father filed a motion for physical
custody after Mother remarried. Father then sought permanent custody, which was
granted over Mother’s objection that Father’s custody motion did not meet
statutory requirements. She also appeals from a finding that Father owed no child
support arrearage. We have considered the issues and the evidence and concluded
that the circuit court acted outside its jurisdiction with regard to the custody
modification. Consequently, the circuit court’s order is affirmed in part, and
reversed in part and remanded.
Mother and Father married in 1986 and are the parents of two
daughters born in 1995 and 1997 respectively. The parties separated in December
2002, and Father filed for divorce the following month. After mediation, the
parties were able to reach two agreements pertaining to custody, support, and
property division. The first agreement, signed on March 16, 2005, stated that the
parties will have joint custody and reserved issues of child support, maintenance,
and the designation of a primary residential custodian to be decided by the circuit
court. The following day, the parties entered a supplemental agreement
designating Mother as primary residential custodian and recognizing her agreement
to live in the marital residence with the girls until June 1, 2006. This agreement
also provided that Father would continue to pay Mother’s household expenses,
plus an additional amount of family support.
The Domestic Relations Commissioner issued a report in April 2005
recommending entry of a decree dissolving the marriage and incorporating the
agreements between the parties. The circuit court entered a decree that same day
adopting the DRC’s recommendations and reserving the issues of child support,
maintenance, attorney’s fees and costs for decision after the entry of the decree.
Father remarried in April 2005, one month after the divorce decree
was entered. In response to Mother’s request for child support and maintenance,
the DRC issued a report in July recommending that the circuit court order Father to
pay $2,000.00 per month in child support and $2,500.00 per month in maintenance
until Mother had completed her degree and obtained employment as a licensed
practical nurse. Both parties filed exceptions to the recommendations. The circuit
court took no action with regard to the DRC’s recommendations until the
Mother remarried in December 2005, prompting Father to file a
motion for physical custody of the girls only nine months after the original joint
custody decree. The circuit court did not immediately rule on Father’s motion.
Soon, Mother and Father were experiencing substantial communications
difficulties. Each party accused the other of making important decisions affecting
the children’s welfare without consulting the other parent.
On April 21, 2006, the circuit court finally addressed the DRC’s
report and recommendations from the previous July. The parties’ objections to the
report were overruled with the exception of the provisions regarding child support
and maintenance. The order postponed decision on these issues until after June 1,
2006 when, according to their agreement, Mother was to vacate the marital
residence. Before that date arrived, Mother vacated the marital residence and
moved with her new husband and the parties’ daughters to Wayne, West Virginia.
The crisis point was reached when Mother removed the girls from the Boyd
County school system and enrolled them in schools in West Virginia. Father filed
a second motion on April 24, 2006 requesting permanent custody of the girls with
Mother to be granted visitation rights.
Neither of Father’s motions to modify custody was accompanied by
an affidavit, nor was there ever any allegation that the present custody arrangement
posed a serious danger to the girls. Consequently, Mother argued that the motion
should be denied for failure to comply with the procedural requirement of section
(2) of KRS 403.340 governing motions to modify a custody decree brought less
than two years after its date. Without addressing the procedural argument, the
circuit court ordered a hearing to determine the motion’s substantive issue.
On March 29, 2007, the DRC issued a lengthy report regarding
Father’s custody motion and Mother’s request for child support. The DRC found
that the original order of joint custody was based on an agreement between the
parties and that Mother failed to uphold her end of the bargain when she moved to
West Virginia with the children and attempted to enroll them in schools there. The
DRC also noted Mother’s failure to allow the children to fully participate in
extracurricular activities in which their father had involved them. Finally, the
DRC opined that the parties were unable to communicate meaningfully regarding
the children. In the end, the DRC determined that the children’s best interests
would be served by granting Father sole custody with Mother having visitation.
Further, the DRC found Father did not owe any arrearages in child support, and
recommended that Mother not be required to pay any child support for two years.
Eleven months later, the circuit court finally acted on the matter,
entering an order which adopted the DRC’s report. Both the DRC and the circuit
court completely ignored the statutory requirements for modifying custody found
in KRS 403.340(2).
On appeal, Mother argues that the circuit court had no jurisdiction to
hear Father’s custody motion since he failed to comply with the requirements of
KRS 403.340(2) which provides as follows:
(2) No motion to modify a custody decree shall be made
earlier than two (2) years after its date, unless the court
permits it to be made on the basis of affidavits that there
is reason to believe that:
(a) The child's present environment may endanger
seriously his physical, mental, moral, or emotional
(b) The custodian appointed under the prior decree has
placed the child with a de facto custodian.
The circuit court’s custody decree was entered less than two years prior to either
date on which Father filed his motions to modify custody. Neither motion satisfied
the requirements of KRS 403.340(2).
The standard of review in this case is “whether the findings of the trial
judge were clearly erroneous or he abused his discretion.” Eviston v. Eviston, 507
S.W.2d 153, 153 (Ky. 1974) (citation omitted).
Unfortunately, and despite the clarity of the statute, this issue has been
before our appellate courts many times. In Robbins v. King, 519 S.W.2d 839 (Ky.
1975), the Kentucky Supreme Court, faced with just such a situation, reached the
The statute unequivocally requires that the motion be
denied unless the court finds that adequate cause for a
hearing has been established by the affidavits. As there
were no affidavits filed, the court had nothing to consider
and was therefore required to forthwith deny the motion.
Id. at 840. A decade later, this Court was faced with the same issue. In analyzing
the purpose behind the legislature’s decision to enact KRS 403.340(2), we opined
The legislature wants stability to come into the lives of
those affected by a custody decree, and it has provided
for a two-year period of postdecree adjustment for the
children. There is a safety valve built into the statute for
situations of present environmental endangerment to the
child. The endangerment, which must be of a serious
nature, must be presented to the circuit court by motion
“made on the basis of affidavits.”
If the statute required only one affidavit the circuit courts
would be continually harassed by the loser in the prior
custody battle with a demand for modification. The
wisdom of the legislature was to provide for stability and
continuity in the child's life for at least a two-year period,
while on the other hand not forgetting the child's interest
if a matter of urgency arises which endangers, or
threatens to endanger, the child. As the modification of
the custody decree here was done in disregard of the
procedural mandates of KRS 403.340(1), the circuit court
was without authority to consider a modification of
Copas v. Copas, 699 S.W.2d 758, 759 (Ky.App. 1985). Nevertheless, confusion
appears to have remained.
One year after Copas, this Court opined in Benassi v. Havens, 710
S.W.2d 867 (Ky.App. 1986) that KRS 430.340 did not apply to motions to modify
joint custody. We thought “modification should be made anew under KRS
403.270 as if there had been no prior custody determination [since] joint custody is
no award at all when considering modification of the arrangement.” Benassi at
869; see also Erdman v. Clements, 780 S.W.2d 635, 637 (Ky.App. 1989),
abrogated by Fenwick v. Fenwick, 114 S.W.3d 767, 781 (Ky. 2003).
In Mennemeyer v. Mennemeyer, 887 S.W.2d 555 (Ky.App. 1994), we
retreated slightly from that position, stating joint custody could only be modified
over either party’s objection “if the court first finds that there has been an inability
or bad faith refusal of one or both parties to cooperate.” Mennemeyer at 558.
Then in 2000, we finally recognized that these decisions had created
an impermissible scheme for modifying custody which ignored the requirements of
KRS 403.340(2). Scheer v. Zeigler, 21 S.W.3d 807, 811-12 (Ky.App. 2000)(en
banc). In Scheer, this court overruled Benassi and Mennemeyer and held “that
joint custody is an award of custody which is subject to the custody modification
statutes set forth in KRS 403.340 and KRS 403.350 and that there is no threshold
requirement for modifying joint custody other than such requirements as may be
imposed by the statutes.” Scheer at 812-14.
Our decision in Scheer leaves no doubt that the circuit court in this
case abused its discretion by addressing the substantive issue of Father’s motions
before Father satisfied the threshold requirement of the statute.
No doubt this Court’s decisions prior to Scheer did not provide the
clearest guidance. However, Scheer rectified that lack of clarity so that it is time to
repeat Justice Palmore’s admonition.
It would be very helpful, and might sometimes obviate
the time and expense of appeals, if lawyers and judges
would pay some attention to the statutes governing
matters of this sort. The statute applicable to this
proceeding is KRS 403.340. It sets forth the only way in
which a custody decree may be modified within two
years after its date. This record discloses no semblance
of compliance with it.
Chandler v. Chandler, 535 S.W.2d 71, 72 (Ky. 1976), see also, Robinson v.
Robinson, 211 S.W.3d 63, 67 fn.6, 69 (Ky.App. 2006)(KRS 403.340 and KRS
403.350 “establish certain clear prerequisites to the modification of a prior custody
decree where the modification is sought earlier than two years after its entry.”).
Father argues in support of the circuit court’s decision that the
previous award of custody based on the parties’ written agreements was temporary
in nature. Thus, he contends that no error occurred in basing the decision to grant
him sole custody on the best interests standard found in KRS 403.270(2). We
The parties’ agreements do not suggest that the arrangement was
temporary. The circuit court’s decree dissolving the parties’ marriage specifically
found that the agreements were not unconscionable and incorporated these terms
into its decree. Nothing in the decree suggests the custody arrangement was
temporary. Father’s argument fails.
Father next claims that Mother’s move to Wayne, West Virginia (a
distance of only thirty miles) shows both that she never intended to honor her
agreement to reside in the marital residence until June 1, 2006, and that she failed
to cooperate with Father in making decisions affecting their children. This, he
argues, justifies the circuit court’s order. Scheer, he claims, supports his argument
that the circuit court could consider the parties’ inability to cooperate when
modifying joint custody orders. We cannot agree.
First, Father ignores our holding in Scheer that a party seeking
modification must satisfy that threshold requirement. Scheer at 814. Subsequent
cases have referred to this as a jurisdictional requirement of KRS 403.340(2).
Robinson, 211 S.W.3d at 69 (“The filing of affidavits, therefore, is a jurisdictional
requirement.”), citing Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006)(“[T]rial
court had no jurisdiction to modify the [permanent custody] order unless a motion
to modify, along with a supporting affidavit, was filed in the case.”). Father filed
no affidavits in this case and therefore, the trial court could not proceed to the
substance of Father’s argument.
Second, the Kentucky Supreme Court has already determined that the
relocation of the primary residential custodian by itself is insufficient to support an
order modifying custody. Fenwick v. Fenwick, 114 S.W.3d 767, 771 (Ky. 2003).
Finally, Father contends that the circuit court’s decision granting him
sole custody was consistent with the children’s best interests as determined under
KRS 403.270(2). He points out the DRC’s conclusion that the parties cannot
communicate and presents this Court with a litany of Mother’s alleged misdeeds.
Once again, this is irrelevant to the analysis required by the statute. Since a
permanent custody decree had been entered less than two years before Father’s
motions to modify custody were filed, the circuit court was required to deny his
motions without a hearing. Robbins v. King, 519 S.W.2d 839, 840 (Ky. 1975)(“As
there were no affidavits filed, the court had nothing to consider and was therefore
required to forthwith deny the motion.”). Consequently, the order modifying
custody and awarding Father sole custody is reversed with directions that the
previous award of joint custody with Mother as primary residential custodian be
Mother next contends that the circuit court erred in not awarding her
child support, both past and present. The parties participated in hearings before the
DRC which resulted in their signing two agreements later incorporated into the
decree. Father testified that in March 2005 he was paying all of Mother’s
household bills in addition to giving her $1,000 per month. Their agreement
required him “to continue to pay family support in generally the amount and for
the items he is now paying plus an additional $160.00 per month for housekeeping
help.” (Supplemental Agreement dated March 17, 2005).
The DRC recommended that Father be required to pay Mother a total
of $4,500 in child support and maintenance per month. (DRC’s report dated July
1, 2005). However, the circuit court never incorporated this recommendation in
any order. The DRC’s report of March 2007 noted that Mother had filed a motion
the preceding August requesting that child support arrearages be determined
according to the terms of an agreement between the parties setting child support at
$2,500 per month from January through May 2006, and $2,000 per month
thereafter. Unfortunately for Mother, the circuit court never incorporated that term
in any order either. Thus, Father remained obligated to pay according to the more
inexact terms of the parties’ agreements reached in March 2005.
In her brief, Mother alleges that Father unilaterally stopped providing
any child support or maintenance following her remarriage in December 2005.
The DRC found that Father continued to pay all of the children’s expenses,
including medical insurance, medical, dental, and ocular expenses, school
expenses, and clothing, for 2006. Further, he continued to pay all expenses
associated with the former marital residence despite the fact that Mother’s new
husband and stepchildren resided there with her from December 2005 through the
middle of following February. When Mother and daughters vacated the residence
and Father moved in with his new wife, he was required to spend approximately
$23,000.00 to repair damage to the home. Consequently, the DRC found that
Father owed no arrearages and recommended that neither party be obligated to pay
support for the next two years.
We are unable to find that the circuit court abused its discretion in
adopting the DRC’s finding that Father owed no child support arrearages to
Mother. Eviston, 507 S.W.2d at 153 (Ky. 1974)(citation omitted). However, given
the fact that we have determined the circuit court improperly granted Father’s
motion for a change of custody, we must reverse that portion of the order stating
neither party shall owe child support for two years. On remand, the circuit court is
directed to restore the original custody award of joint custody with Mother as the
primary residential custodian and to enter such orders regarding child support as
may be appropriate under KRS 403.212.
For the foregoing reasons, the order of the Boyd Circuit Court is
affirmed in part, reversed in part and remanded with directions.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Tracy D. Frye
Roger W. Hall
Catherine C. Hughes