ANDERSON (SUZANNE) VS. JOHNSON (JOSEPH)
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RENDERED: AUGUST 27, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001261-ME
SUZANNE ANDERSON
v.
APPELLANT
APPEAL FROM FRANKLIN FAMILY COURT
HONORABLE O. REED RHORER, JUDGE
ACTION NO. 02-CI-00977
JOSEPH JOHNSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
ACREE, JUDGE: Suzanne Anderson (Mother) appeals a May 23, 2009 order of
the Franklin Family Court denying her motion to modify timesharing. For the
following reasons, we affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute(s)
(KRS) 21.580.
During their brief marriage, Mother and Joseph Johnson (Father)
resided in Frankfort, Kentucky. They had one minor child together. The parties
divorced in 2002. In 2007, upon the parties’ joint motion, the family court entered
an order awarding custody of the child to the parties jointly with equal, but
flexible, timesharing.
On April 6, 2009, Mother filed a motion for “an order modifying the
timesharing schedule of the parties.” (Appellant’s motion, April 6, 2009).
Mother’s basis for seeking the modification was to make it easier for her “to
relocate with the minor child to Paducah, Kentucky.” Id. The timesharing
schedule proposed by Mother would have significantly reduced Father’s time with
the child.
The issue before the family court was whether a modification of
timesharing was in the child’s best interests. KRS 403.320(3)(“court may modify
an order granting or denying visitation rights whenever modification would serve
the best interests of the child”); see also Pennington v. Marcum, 266 S.W.3d 759,
770 (Ky. 2008)(“if the Appellant was actually seeking only a modification of
visitation/timesharing, the standard the court had to apply is what is in the best
interests of the child.”).
The family court conducted a hearing on Mother’s motion which
lasted several hours. Not long thereafter, the family court entered an order denying
modification as follows:
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[Mother] having filed a Motion to Modify Timesharing,
which came before the Court for a hearing on May 4,
2009, the Court having heard testimony of both parties,
the Court having heard testimony of the witnesses, the
Court having reviewed the court record, and the Court
being otherwise sufficiently advised, the Court hereby
finds that it is not in the best interest of [the child] to
relocate to Paducah, Kentucky. Therefore, [Mother’s]
Motion to Modify Timesharing is hereby DENIED.
(Order, May 23, 2009). Mother appealed that order to this Court.
“[T]his Court will only reverse a trial court’s determinations as to
visitation if they constitute a manifest abuse of discretion, or were clearly
erroneous in light of the facts and circumstances of the case.” Drury v. Drury, 32
S.W.3d 521, 525 (Ky. App. 2000). However, Mother does not argue either of
these grounds. Instead, she asserts as error that “[t]he [family] court made no
findings of fact.” Consequently, the relief she seeks is not reversal; she instead
asks this Court “to remand this case to the trial court with an order to make specific
findings and to take such further proof as may be necessary.” (Appellant’s Brief,
p.7).
Father responds by quoting Kentucky Rule(s) of Civil Procedure (CR)
52.01 that “[f]indings of fact and conclusions of law are unnecessary on decisions
of motions under Rules 12 or 56 or any other motion except as provided in Rule
41.02.” CR 52.01. Mother’s post-decree motion to modify visitation falls in the
category of motions exempted by the quoted language. While Father’s reading of
the rule is technically correct, it does not fully illuminate how Kentucky’s courts
have come to apply CR 52 to post-decree motions in dissolution cases.
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Our highest court has periodically indicated that CR 52.01 does not
require the trial court to include findings of fact and conclusions of law when
ruling on post-decree motions to modify. In LeBus v. LeBus, 408 S.W.2d 200 (Ky.
1966), the Court reviewed a trial court’s order granting a motion to modify child
support. The father presented four assignments of error, one of which was the trial
court’s “fail[ure] to make findings of fact as required by CR 52.01.” LeBus at 201.
Our former Court of Appeals said:
There is no merit in the contention that the order must be
overturned because of the court’s failure to make
findings of fact. CR 52.01 specifically excepts rulings
upon motions from its mandate. It would have been
better practice for the trial court to make findings of fact,
but the cited rule does not make it mandatory.
Id. at 202.
A few years later, in Clay v. Clay, 424 S.W.2d 583 (Ky. 1968), the
Court reviewed an order granting a post-decree motion for approximately $6,400
in child support arrearage. The Court said the father’s argument “that the trial
judge failed to make findings of fact and conclusions of law is without merit. CR
52.01 exempts rulings on motions from its mandate for such findings of fact and
conclusions of law.” Clay at 584.
In its application of the motion exemption contained in CR 52.01, our
highest court had, to that time, treated all post-decree orders the same whether
those orders granted the post-decree relief sought or denied it. See, e.g., Powell v.
Powell, 423 S.W.2d 896, 897-98 (Ky. 1968)(in “the trial court’s denial of the relief
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sought by [the father] . . . [b]y the terms of CR 52.01, the trial court was not
required to state its findings of fact and conclusions of law.”). In 1974, the Court
began distinguishing between post-decree orders granting relief and those in which
the relief sought was denied.
In Burnett v. Burnett, 516 S.W.2d 330 (Ky. 1974), a father filed a
post-decree motion to terminate both his maintenance obligation and his former
spouse’s right to occupy the marital residence. The motion was denied, and “[t]he
order was not accompanied by findings of fact and conclusions of law.” Burnett at
331. The father
concede[d] that the Civil Rules, CR 52.01, do not require
findings on a motion to modify a divorce judgment, but
he maintain[ed] that KRS 403.250, in authorizing
modification of such a judgment in respect to support or
maintenance only upon ‘a showing of changed conditions
so substantial and continuing as to make the terms
unconscionable,’ by necessary implication requires
findings of evidentiary facts in support of an order
granting or denying such a motion.
Id. at 332 (emphasis supplied). The Court found merit in the father’s argument “as
concerns orders granting a motion to modify, because it cannot be determined
whether the requirement of the statute as to a showing of a change of conditions
was complied with unless the circuit court makes appropriate findings of
evidentiary facts.” Id. (emphasis supplied). Burnett, therefore, continued to hold
that CR 52.01 does not require findings in orders entered upon post-decree motions
to modify; however, Burnett embraced a new rule, albeit in dicta – the extent to
which findings of fact and conclusions of law are required in post-decree orders
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granting a post-decree motion depends on the standard contained in the statute
pursuant to which the motion was brought. Id. This dicta was soon embraced by
this Court in Mullins v. Mullins, 584 S.W.2d 601 (Ky. App. 1979) where we said,
Burnett v. Burnett, Ky., 516 S.W.2d 330 (1974), indicates
that a trial court should make findings of fact when a
motion for modification under KRS 403.250(1) is
granted. This is true, although CR 52.01 might indicate
contra. Unless the court makes appropriate findings of
evidentiary facts, it cannot be determined whether the
requirement of the statute as to a showing of change of
conditions has been satisfied. The court did note,
however, that CR 52.04 may require that a party request
findings of fact in order to preserve the basis for a
reversal or remand. Burnett, supra, 516 S.W.2d at 332,
See n.1.
Mullins at 603; see also Klopp v. Klopp, 763 S.W.2d 663, 665 (Ky. App. 1988)
(“Civil Rule 52.01 does not require a trial court to make findings on motions. Our
case law, though, does require such findings in ruling on motions to modify
dissolution judgments, at least when the court grants the motion.”).
However, in Burnett, there was another more significant factor. The
father’s motion in Burnett was not granted. The motion was denied and the Court
said that made a difference. The Court concluded
that findings are unnecessary under KRS 403.250 when
the motion is denied. When such a motion is denied, the
reason necessarily is that the movant did not sustain his
burden of showing the required change of conditions.
There is no need for findings of evidentiary facts,
because the finding would simply be that the movant had
not produced sufficient proof to require an affirmative
finding of the facts on which he relied. So we find no
error here in the failure of the circuit court to make
findings.
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Id. at 332.
While Burnett specifically addressed post-decree modifications under
KRS 403.250, the reasoning is equally applicable to Mother’s motion brought
pursuant to KRS 403.320(3). To paraphrase Burnett, when such a motion is
denied, the reason necessarily is that the movant did not sustain her burden of
showing the “modification would serve the best interests of the child.” KRS
403.320(3).
We draw from these cases, and particularly from Burnett, these three
rules: (1) CR 52.01 does not require a trial court to make findings on post-decree
motions whether they are granted or denied; (2) when a post-decree motion is
granted, case law rather than CR 52.01 does require findings of fact and
conclusions of law sufficient to address the standard contained in the statute
pursuant to which the motion was brought; (3) when a post-decree motion is
denied, neither CR 52.01 nor case law requires findings of fact or conclusions of
law because implicit in the denial is the finding that the movant failed to produce
sufficient proof to require an affirmative finding of the facts on which he relied.
We emphasize that Burnett and its progeny do not leave the
unsuccessful post-decree movant without recourse.
We note first that Burnett does not deprive any party of the remedial
provisions of CR 52. That is, even though CR 52.01 does not require findings on
motions, nothing prevents a party from eliciting the trial court’s discretion to enter
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findings by bringing a motion pursuant to CR 52.02. After all, Kentucky appellate
courts continue to require the unsuccessful respondent to a post-decree motion to
preserve error by complying with CR 52.04. See Louise E. Graham & James E.
Keller, 15 Kentucky Practice - Domestic Relations Law § 13:6 fn.1-3 (2009).
Next, and more importantly, nothing prohibits an unsuccessful postdecree movant from appealing the denial of the motion on the grounds set forth in
Drury, supra. Drury, 32 S.W.3d at 525. Drury makes it clear that orders denying
post-decree motions, even without findings of fact and conclusions of law, do not
inhibit appellate review; such orders will still be reversed “if they constitute a
manifest abuse of discretion, or were clearly erroneous in light of the facts and
circumstances of the case.” Id.
Unfortunately, Mother pursued neither of these courses. Instead, she
is asking this Court to order the family court to do that which CR 52.02
empowered her to ask the family court directly. We decline to do so.
Our Supreme Court adopted CR 52 (i.e., CR 52.01 to CR 52.04)
because it recognized that a trial court is best suited to provide the type of relief
Mother seeks. The requirement in CR 52.04 that litigants first use CR 52.02 as a
prerequisite to pursuing relief in the appellate courts is wise and beneficial for a
number of reasons.2 First, requiring the use of CR 52.02 assures that
2
Giving credit where it is due, we note that while CR 52.01, 52.02, and 52.03 are taken from
Federal Rules of Civil Procedure 52(a) and 52(b), Kentucky’s CR 52.04 is an original creation of
our former Court of Appeals.
Rule 52.04, adopted in 1973, effective March 1, 1974, is original
and has no counterpart in the Federal Rules. It was designed to
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reconsideration of an order or judgment occurs when the trial court is most familiar
with the issues and the evidence. This increases the likelihood of a just final result.
Second, use of CR 52.02 is the most expeditious way for litigants to obtain the
relief Mother seeks. This increases the odds that a final result will be swift as well
as just. Third, use of the rule can yield an order or judgment that is either more
satisfactory to both parties or less assailable on appeal, thereby reducing the
possibility that resort to this Court will be necessary. This preserves judicial
resources and likely lowers the parties’ costs.
Fourth, use of CR 52.02 gives the
trial
court the opportunity to refine or elaborate upon its reasoning in the case. This
allows for more effective appellate review when resort to this Court is necessary.
All these reasons justify, in any case, the requirement that the family court be
given the first opportunity to consider making additional findings before this Court
is asked to order them. The case before us is no exception.
In our case, the Franklin Family Court denied Mother’s motion to
modify visitation. According to Burnett, the family court was not required to enter
any findings of fact or conclusions of law. We, therefore, must affirm the order
absent controlling authority to the contrary. Mother cites as that controlling
solve a practical problem of appellate review when a party wishes
to raise the point that the failure of the trial court to make findings
constitutes reversible error.
Kurt A. Philipps, Jr., David V. Kramer and David W. Burleigh, 7 Kentucky Practice – Rules of
Civil Procedure Annoted Rule 52.04 (6th ed. 2009).
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authority McFarland v. McFarland, 804 S.W.2d 17 (Ky. App. 1991), because she
believes the case is “on all fours” with her case. We disagree.
The mother in McFarland sought review of a decree, entered after a
contested dissolution hearing, which granted custody of the children to the father;
the mother was not seeking review of an order denying relief she sought pursuant
to a motion. Therefore, the exemption as to motions contained in CR 52.01 was
not at play in McFarland as it is in the case before us.
Furthermore, in McFarland not only did the trial court make no
findings in support of its custody award, the court also failed to apply the bestinterests-of-the-child standard. McFarland at 18. True, we will reverse an order
granting a motion to modify visitation if the family court fails to “address the
threshold inquiry of the children’s best interests and ma[kes] no findings in support
of that ultimate fact in accordance with K.R.S. 403.320(2) [recodified in 1992 as
KRS 403.320(3)].” Hornback v. Hornback, 636 S.W.2d 24, 26 (Ky. App.
1982)(emphasis supplied). This is because whether modification of visitation
would serve the best interests of the child is the “conclusory or ultimate fact to be
found as required by the statute” and which the family court was required to
determine. Id. It is clear in the case sub judice that the Franklin Family Court did
consider the proper standard – the best interests of the child – and did enter a
finding on the ultimate fact that modification of visitation was not in the child’s
best interest.3
3
Technically speaking, the family court’s order determined that “it is not in the best interest of
[the child] to relocate to Paducah, Kentucky,” indicating the court’s adherence to the proper
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Finally, in addition to failing to consider the best-interests-of-the-child
standard, the trial court in McFarland failed to “consider all relevant factors
including those specifically enumerated in KRS 403.270(1) in determining the
‘best interests of the child.’” Id. at 18. There were no additional enumerated
factors in KRS 403.320(3) for the Franklin Family Court to consider. Both
McFarland and Burnett hold, without regard to the applicability of CR 52.01, that
the extent to which findings must be included in the court’s determination is
established by the applicable statute. To that extent, these cases are in harmony.
In sum, Mother’s reliance on McFarland is unavailing, and we are
compelled to affirm the Franklin Family Court’s order.
In so finding, however, we do not intend to encourage minimalism in
the drafting of orders. As even the Court in LeBus, supra, stated, “[i]t would have
been better practice for the trial court to make findings of fact, but the cited rule
does not make it mandatory.” LeBus, 408 S.W.2d at 202.
Additionally, we are sympathetic to the concern expressed in dicta by
another panel of this Court “urg[ing] our Supreme Court and Rules Committee to
review and revise CR 52.01.” McKinney v. McKinney, 257 S.W.3d 130, 135 (Ky.
App. 2008). That panel noted,
Many motions require a court to try the issues upon the
facts. To hold that a trial court is not obligated to make
findings of fact when ruling on a motion of any kind
standard. We therefore construe this determination as indistinguishable from the ultimate issue
before the family court – whether modification of visitation was in the child’s best interest.
Under Burnett, the denial of the motion itself is sufficient to permit appellate review based on the
standard established in Drury, supra.
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except as provided in CR 41.02 [footnote omitted]
necessarily deprives litigants of an understanding of the
order or judgment, as well as inhibits any type of
meaningful appellate review.
Id. To a large degree, however, the evolution of Kentucky’s domestic relations
jurisprudence, as outlined herein, has addressed this concern by requiring postdecree orders granting modification to contain findings sufficient to satisfy the
standard in the statute pursuant to which the motion is brought, and by holding that
findings are unnecessary when the post-decree motion is denied.
Because we find no error in the May 23, 2009 order of the Franklin
Family Court, we affirm.
BUCKINGHAM, SENIOR JUDGE, CONCURS AND FILES
SEPARATE OPINION.
TAYLOR, CHIEF JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
BUCKINGHAM, SENIOR JUDGE, CONCURRING: The only issue
before this court is whether the trial court erred in regard to findings of fact. Any
question concerning alleged error by the court in addressing the merits of the
appellant’s motion is not before this court.
I agree that findings of fact and conclusions of law were unnecessary.
“Findings of fact and conclusions of law are unnecessary on decisions of motions
under Rules 12 or 56 or any other motion except as provided in Rule 41.02.” CR
52.01. I also agree that the appellant’s reliance on the McFarland case is
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unavailing. As has been noted, McFarland involved an appeal from a custody
decree, and this case involves an appeal from an order denying a motion to modify
timesharing. Thus, I agree that the trial court’s order in this case is exempt from
the portion of CR 52.01 that requires findings of fact in “all actions tried upon the
facts without a jury.”
I disagree with the dissent that the Reichle4 case mandates that trial
courts must make findings of fact and conclusions of law in deciding post-decree
modification motions. While the court in Reichle did state that CR 52.01 applies to
custody cases, that case, like McFarland, involved an initial custody
determination. I conclude that the language of the court therein contemplated only
such determinations or decrees and did not refer to motions to modify as well.
The dissent states that the majority denies appellate review to the
appellant pursuant to CR 52.04 because she failed to file a motion for additional
findings pursuant to CR 52.02. I do not read the majority opinion in that manner.
Rather, the majority opinion simply affirms the trial court’s order because the trial
court was not required to make findings of fact and conclusions of law. The
appellant did not ask for appellate review of the trial court’s order on its merits.
Had the appellant asked for a review of the order on its merits, I conclude we
would have been required to do so regardless of whether she moved the court for
additional findings or not.
4
Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986).
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TAYLOR, CHIEF JUDGE, DISSENTING: Respectfully, I dissent.
The majority concludes that CR 52.01 does not require a circuit court to make
findings of fact on post-decree motions regardless of whether the motion is granted
or denied and that applicable case law requires findings of fact and conclusions of
law only if the post-decree motion is granted. I believe the majority’s
interpretation of CR 52.01 is in error and the applicable case law analysis flawed
for several reasons.
First, this case involves modifications pertaining to child visitation
orders. Accordingly, I do not believe that either Burnett or Mullins, upon which
the majority relies, is applicable since both involve post-decree modifications
pertaining to maintenance. As provided for in KRS 403.250, the requirements for
post-decree modifications of maintenance are substantially different than
modifications pertaining to child visitation under KRS 403.320. The primary
consideration in obtaining maintenance modification is changed circumstances
whereas the primary consideration in modification of child visitation is always the
best interests of the child. KRS 403.320(3). For the purpose of determining the
best interests of the child, our Courts have inferred from this statute that an
evidentiary hearing is required for making the best interests determination.
McNeeley v. McNeeley, 45 S.W.3d 876 (Ky. App. 2001); Pennington v. Marcum,
266 S.W.3d 759 (Ky. 2008).
Second, I believe post-decree child visitation modification
proceedings are more closely akin to child custody modification proceedings as
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provided under KRS 403.340, which also requires that any modification must be in
the best interests of the child. In Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986),
the Kentucky Supreme Court specifically held that CR 52.01 applied to child
custody cases and that “the findings of fact are particularly important in such
situations.” Id. at 444. The Supreme Court makes no distinction in whether a
motion is granted or denied.
In Reichle, the parties were married six months before getting a
divorce. They later resumed cohabitation, which resulted in the birth of a child out
of wedlock. The child lived with the mother for six years when the father initiated
proceedings, post-decree, to obtain custody of the child. The father’s motion was
denied, which subsequently was reversed the by Court of Appeals. In reversing the
Court of Appeals, the Supreme Court applied CR 52.01, despite the father’s motion
having been denied below. Therein, the Supreme Court stated the obvious:
One of the principal reasons for the rule [CR 52.01] is to
have the record show the basis of the trial judge's
decision so that a reviewing court may readily understand
the trial court's view of the controversy.
Reichle, 719 S.W.2d at 444. Accordingly, I believe under Kentucky case law,
including the mandate of Reichle and its progeny, that CR 52.01 is applicable to
any post-decree modification motion that involves a determination of the best
interests of the child, including visitation modification proceedings.
Third, I believe the majority’s historical analysis regarding the
application of CR 52.01 and its exclusion of “motions” from the findings of fact
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requirement is also flawed. CR 52.01 was adopted effective July 1, 1953.
Kentucky’s no-fault dissolution statutes (KRS 403.110 et seq.) were enacted by the
Kentucky General Assembly in 1972. I believe the language in the post-decree
modification statutes, as pertains to visitation and child custody (KRS 403.320(3)
and KRS 403.340), reflects a legislative intent that contemplates courts conducting
evidentiary proceedings to determine whether modification is in the best interests
of the child. Likewise, I do not believe Kentucky’s highest court, in adopting CR
52.01, contemplated that post-decree modification motions enacted some twenty
years later would be outside the scope of CR 52.01. As noted earlier in Reichle,
the Kentucky Supreme Court explicitly stated that CR 52.01 was applicable to
child custody proceedings. However, the focus of the majority gets hung up on the
distinction of whether the motion for modification is granted or denied, to justify
whether findings are required under CR 52.01. While there may be some legal
precedent for such an analysis in maintenance proceedings, there certainly exists
no binding precedent to support such a position as pertains to child visitation or
child custody proceedings. If the circuit court conducts evidentiary hearings which
are subject to the mandate of CR 52.01, it should make absolutely no legal
difference whatsoever whether the modification motion is granted or denied. The
analysis and legal reasoning in any ruling by a circuit or family court will be the
same regardless of whether the modification motion is granted or denied. Unless
findings of fact are provided by the circuit or family court, our Court simply has no
ability to conduct an adequate and intelligent appellate review. Appellate courts
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should not be placed in the position of having to read the mind of a circuit or
family court judge to determine the basis for the judge’s ruling.
In interpreting CR 52.01, the former Kentucky Court of Appeals, the
predecessor to the Kentucky Supreme Court, addressed this very issue in Elkins v.
Elkins, 359 S.W.2d 620 (Ky. 1962), after the adoption of CR 52.01. In Elkins, a
woman attempted to modify a child support agreement that had been entered into
with the father of the children in conjunction with the divorce.5 The circuit court
denied the mother’s motion to modify the child support agreement. In reversing
the circuit court by applying CR 52.01, despite the mother’s motion having been
denied, Judge Palmore made the following eloquent observation regarding the
necessity of findings of fact in post-decree modification proceedings:
The order from which this appeal is taken neither
contains findings of fact nor discloses the basis on which
the trial court's decision was made. This is unfortunate,
for a losing party ought not to be deprived of a proper
review by the court's failure to record its specific rulings
of law and fact. By its failure to conform with CR 52.01
a record that leaves us in the dark in this respect
inevitably conduces to a substitution of our own
judgment for that of the trial court.
Id. at 622.
To the extent that our courts have strayed in their interpretation and
application of CR 52.01, I believe those decisions are distinguishable or otherwise
simply in error. In recent years, the interpretation and application of CR 52.01 has
generated substantial discussion and confusion by both the bench and bar regarding
5
The applicable child support law in effect when Elkins was decided (1962) was prior to the
enactment of no-fault divorce statutes in 1972.
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its interpretation and application. Another panel of this Court recently criticized
any limitation of CR 52.01 to post-dissolution decree motions. In McKinney v.
McKinney, 257 S.W.3d 130 (Ky. App. 2008), Judge Dixon made the following
astute observation:
However, we are also of the opinion that CR
52.01, as currently written, is not only overbroad but
illogical. The majority of orders and judgments from the
trial court originate from a motion. Many motions require
a court to try the issues upon the facts. To hold that a trial
court is not obligated to make findings of fact when
ruling on a motion of any kind except as provided in CR
41.02 necessarily deprives litigants of an understanding
of the order or judgment, as well as inhibits any type of
meaningful appellate review. We would urge our
Supreme Court and Rules Committee to review and
revise CR 52.01.
Id. at 135 (footnote omitted). Given that the majority in this case has limited the
proper application of CR 52.01 to a post-decree modification proceeding, I concur
totally with Judge Dixon’s observation.
Finally, I believe the majority has totally misinterpreted and
misapplied CR 52.04 in this case. Assuming that CR 52.01 were applicable to this
case, once a circuit court conducts evidentiary proceedings, the rule requires that
the court shall state specific findings of fact and shall further state separate
conclusions of law in rendering the appropriate judgment. In this case, the family
court failed to make any findings of fact whatsoever for this Court to review. The
order on appeal simply stated that the family court found that it was not in the best
interests of the child to relocate to Paducah, Kentucky. While this may be a
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conclusory finding, it is not supported by any analysis or findings regarding the
statutory requirements set forth in KRS 403.320. The requirement for making
findings of fact is mandatory for proceedings pursuant to CR 52.01. Brown v.
Shelton, 156 S.W.3d 319 (Ky. App. 2004). In my opinion, CR 52.04 is not
triggered until the family court makes findings of fact but otherwise fails to make
adequate findings or does not address an issue that a party believes should be
addressed in the findings. Thereupon, the failure to make adequate findings of fact
must be brought to the circuit court’s attention by a motion for more definite
findings under CR 52.04 or the error is considered waived. Cherry v. Cherry, 634
S.W.2d 423 (Ky. 1982).
This is totally distinguishable from the case now on appeal where the
family court has failed to make any findings of fact which I believe results in
reversible error regardless of whether a CR 52.04 motion was filed. Brown, 156
S.W.3d 319. In other words, a party is not required to ask for additional findings if
the circuit court fails to make findings that are mandatory under CR 52.01. Here,
the majority has denied appellant a review on the merits because she failed to file a
motion under CR 52.04. The majority cannot have it both ways. If CR 52.01 is
not applicable, as the majority holds, because appellant’s motion was denied, then
CR 52.04 cannot be applied independent of CR 52.01, which the majority has done
in this case. However, if CR 52.01 is applicable, then findings of fact were
mandatory which, as noted, were not made by the family court. Contrary to the
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majority’s position, the failure to make findings under CR 52.01 is reversible error
as a matter of law. See Brown, supra.
For these reasons I would reverse and remand to the Franklin Family
Court for further proceedings in conformance with CR 52.01 and KRS 403.320(3).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William D. Tingley
Louisville, Kentucky
Max Harding Comley
Frankfort, Kentucky
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