MARCUM (JAMIE) VS. MARCUM (GLENN)
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RENDERED: DECEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000523-ME
JAMIE MARCUM
v.
APPELLANT
APPEAL FROM GREENUP FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 06-CI-00393
GLENN MARCUM
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: NICKELL AND WINE, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Jamie Marcum appeals from a Greenup Family Court
order, entered on February 16, 2009 (the February 16 order), which granted Glenn
Marcum’s Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend,
or vacate the custody provisions of the parties’ marriage dissolution decree
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
(decree) entered on October 15, 2008. The decree awarded the parties joint
custody of their children with Jamie2 designated as the primary residential
custodian. The February 16 order awarded sole custody to Glenn, with restricted
visitation awarded to Jamie. Jamie also appeals from an order entered on March 4,
2009, denying her motion to alter, amend, or vacate the February 16 order. After
reviewing the record and briefs, we conclude that Gullion v. Gullion, 163 S.W.3d
888 (Ky. 2005), requires us to vacate the February 16 order and remand this case to
the Greenup Family Court “with directions to limit its consideration of [Glenn’s]
CR 59.05 motion to facts that existed at the trial.” Id. at 894.
Glenn and Jamie were married in 1998. Their marriage produced four
children. Initially, Glenn filed for dissolution of the marriage on June 30, 2006,
after Jamie, Jamie’s male paramour, and the children moved to Alabama. Three
months later, Jamie moved back to Kentucky and reconciled with Glenn. On May
1, 2007, the trial court entered a notice to dismiss for lack of prosecution. Shortly
thereafter, on June 15, 2007, Glenn filed an amended petition for dissolution after
Jamie took the children and moved to Illinois with her cousin, Sara. Several
months later Jamie moved the children back to Alabama. The decree of
dissolution was entered October 15, 2008, following a trial (characterized by the
trial court as a “final hearing”) held on September 30.
In the decree of dissolution and custody order, the trial court clearly
stated concerns about the parenting skills of both parties. The court found that
2
We refer to the parties by their given names for the sake of clarity and without intending any
disrespect.
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Glenn had not seen the children or provided financial support since June 2007. On
the other hand, the court found that Jamie failed to provide the children with a
stable environment and engaged in a romantic relationship with her cousin Sara.
Based upon Jamie’s testimony, however, the trial court found that the children had
been in Alabama for a year and were doing well in school. The trial court awarded
Jamie and Glenn joint custody with Jamie designated as the primary residential
custodian. Glenn was ordered to pay child support in the amount of $152.00 per
month.
Twelve days after the original decree of dissolution and custody order
was entered, on October 27, 2008, Glenn filed a CR 59.05 motion to alter, vacate
or amend the custody order. The motion claimed that Jamie lied to the court about
the children’s living conditions and school progress. The facts alleged were
obtained through a telephone conversation between Glenn’s sister and one of the
children that occurred after the original custody hearing. The motion also
requested that the trial court order the Alabama school system to provide the
children’s academic records for review. A hearing on the motion was held on
February 2, 2008.
During the hearing, Jamie testified that she moved back to Illinois
after her mobile home was repossessed in Alabama. Glenn argued that Jamie had
knowingly misled the trial court when she testified that she and the children
continued to reside in Alabama, considering that Jamie moved the children to
Illinois the day after the hearing. Glenn also claimed that Jamie lied to the trial
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court about the children’s standard of living and well-being based upon his son’s
claims that the children slept on the floor and did not want to live with their
mother. Jamie counter-argued that the child who spoke to Glenn’s sister is
mentally disabled and is confused easily.
After hearing arguments from both parties, the trial court entered an
order granting Glenn’s CR 59.05 motion on February 16, 2009, amending the
previous order and awarding custody to Glenn. The trial court found that Jamie
mislead or lied to the court during the September 30, 2008, trial concerning living
arrangements, living conditions, and the children’s performance in school. The
trial court specifically noted that at the February 2, 2009, hearing Jamie testified
that she had moved the children from Alabama to Illinois on the very next day
following the September 30, 2008, trial, and that when Jamie testified at the trial
she “gave no indication whatsoever that she would be moving to Illinois the next
day.” The court also found that Jamie failed to be an active participant in her
children’s education. The trial court specifically stated that it utilized the factors
found in KRS 403.270 in determining what is in the best interest of the children in
making its decision. Although Glenn had been an absentee father since the
separation, the court found that he could better provide a stable home environment
for the children since he lived with his family and had a stable job. The court
granted awarded Glenn custody of the children and awarded Jamie visitation
rights. This appeal follows.
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One of Jamie’s arguments on appeal is that the trial court erred in
granting Glenn’s CR 59.05 motion because it based its decision on facts that were
not in existence at the time of the September 30, 2008 trial. Because we are bound
to follow the law as enunciated by the Kentucky Supreme Court in the Gullion
case, see Rules of the Supreme Court (SCR) 1.030(8)(a), we agree with this
argument and do not reach any other issues.
It is abundantly clear that the evidence adduced before the trial court
at the hearing on Glenn’s CR 59.05 motion included evidence of events which
occurred subsequent to the September 30, 2008 trial. It is just as clear that the trial
court’s February 16 order was based in part on that evidence. Gullion expressly
states:
Although a trial court may grant a CR 59.05
motion if the movant presents newly discovered evidence
that was not available at the time of trial, “newly
discovered evidence” must be of facts existing at the time
of trial. . . . [I]t is improper for a trial court to rely upon
evidence of events that occurred subsequent to the trial in
ruling on a CR 59.05 motion. . . . [T]he trial court
committed reversible error when, in changing custody, it
relied in part on facts that occurred subsequent to the
custody trial.
Gullion, 163 S.W.3d at 894.
In the present case the trial court has done precisely what Gullion
prohibits. We have our marching orders.
Accordingly, the orders entered in the Greenup Family Court on
February 16, 2009, and March 4, 2009, are vacated and this case is remanded to the
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Greenup Family Court with directions to limit its consideration of Appellee’s CR
59.05 motion to facts that existed at the time of the September 30, 2008 “final
hearing.”
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Audelia J. Francis
Ashland, Kentucky
Richard A. Hughes
Ashland, Kentucky
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