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DAUGHERTY v. DAUGHERTY, 2013-CA-000305-ME. (2013)

Court: Court of Appeals of Kentucky Number: inkyco20131115224 Visitors: 4
Filed: Nov. 15, 2013
Latest Update: Nov. 15, 2013
Summary: NOT TO BE PUBLISHED OPINION MOORE, Judge. Natalie Daugherty (now Fisk) (mother) appeals from the denial of a motion to modify timesharing in which she sought to be designated as child's primary residential custodian and to reduce visitation by Paul A. Daugherty (father). Rather than modifying timesharing to grant mother additional parenting time, the family court accommodated the father's work schedule, wherein father works on a barge for twenty-eight days and then is off twenty-eight days. C
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NOT TO BE PUBLISHED

OPINION

MOORE, Judge.

Natalie Daugherty (now Fisk) (mother) appeals from the denial of a motion to modify timesharing in which she sought to be designated as child's primary residential custodian and to reduce visitation by Paul A. Daugherty (father). Rather than modifying timesharing to grant mother additional parenting time, the family court accommodated the father's work schedule, wherein father works on a barge for twenty-eight days and then is off twenty-eight days. Consequently, the court ordered that the child spend alternating twenty-eight day periods with each parent, without allowing for any visitation with the mother during the twenty-eight day period that father is exercising visitation time with the child while he is off work. Because the family court failed to make findings of fact that this modification of time sharing is in the child's best interests, we vacate and remand.

Father and mother were married in 2006, and their child was born that same year. Two years later, parents separated and mother filed a petition for dissolution of marriage. On August 27, 2008, parents were temporarily awarded joint custody of child, father was designated the primary residential custodian, and mother was given visitation. On February 9, 2009, parents entered into a separation agreement in which they agreed to joint custody of child with shared parenting time on a week-to-week basis with exchanges taking place every Sunday. This arrangement was maintained in parents' amended and supplemental separation agreement and incorporated into parents' decree of dissolution, entered on May 20, 2009.

The week-to-week equal parenting time arrangement was followed until the beginning of 2010 when father began employment with Zappo's, working ten hour shifts, four days a week. At that time, parents voluntarily altered child's schedule so that she typically remained in the physical custody of mother the majority of the time, with father exercising overnight parenting for two to three days a week on his days off work. Child stayed with mother on the days father was working to minimize the time child would be in the care of a non-parent.

In August 2011, father began a new job working for Inland Marine on a barge in which he worked twenty-eight days and then had twenty-eight days off. Despite not having exercised his entitlement to equal timesharing since 2010, he wished to exercise his entitlement to equal timesharing by having physical custody of child during the twenty-eight day period he was off work. Mother refused and agreed only to revert to the existing court approved agreement of alternating weeks of physical possession.

On September 19, 2012, mother filed a motion seeking to modify the current shared custody agreement to award her primary physical care, custody and control of child, with father to receive visitation in accordance with the Hardin County Visitation Guidelines. In an affidavit and proposed order, mother requested modification of their parenting times. Father objected and requested the family court continue the shared custody arrangement but allow each parent to have timesharing in accordance with his work schedule, i.e., exclusive parenting time at twenty-eight day intervals.

At the evidentiary hearing, the witnesses testified that both parents were responsible and highly involved in child's life. When in mother's custody, child spent time with her mother, a baby half-sister, her step-father and pets. When in father's custody, child spent time with her father, grandmother, step-grandfather and an older half-sister in the custody of grandmother. Both parents took good care of child and made sure she got to school on time. Child had adapted well after moving to a new home with mother, to a new school and to the birth of her baby sister.

Following an evidentiary hearing, the family court issued a written order denying mother's motion and ordering parents to continue the joint shared custody arrangement with each parent having equal parenting time with child in accordance with father's work schedule. Father would have twenty-eight days of parenting time while he was off work, and mother would have twenty-eight days of parenting time when father was working— without any allowance for visitation by the mother during the twenty-eight day periods father has child. The family court stated that it was giving effect to the parties' agreement regarding equal parenting time despite the fact that the undisputed testimony at the evidentiary hearing was that while the parties' written agreement had not been altered in writing, father had not exercised equal parenting time since 2010 in accordance with the agreement.

Mother filed a motion to alter, amend or vacate this order. Following a hearing, the family court orally denied this motion, emphasizing it was giving effect to parents' earlier agreement of joint shared custody, no one filed a motion to change custody or demonstrated this arrangement would harm child. The written order summarily denied the motion, and mother appealed.

Both below and before this Court, mother argued that her motion for primary physical care, custody and control of child is governed by the standards relating to custody under KRS 403.340. However, under Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), a motion to change the primary residential custodian is no longer a motion for a modification of custody but is instead a motion for a change in timesharing. Shafizaden v. Bowles, 366 S.W.3d 373, 375 (Ky. 2011). It is clear that mother's motion was not for a modification of custody but for a modification in timesharing. Accordingly although KRS 403.320(3) speaks to visitation rather than timesharing, it provides the relevant standard for determining whether a modification should be granted. Pennington, 266 S.W.3d at 765, 768-769; Humphrey v. Humphrey, 360 S.W.3d 460, 464 (Ky.App. 2010). KRS 403.320(3) provides:

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.

Therefore, we consider mother's motion and appeal in light of this standard.

"[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).

Herein, however, we cannot engage in a meaningful review because the family court wholly failed to make any factual findings regarding whether such a drastic modification of timesharing was in the child's best interest pursuant to KRS 403.320(3). Pursuant to binding authority the family court was mandated to make these findings, and without such there can be no meaningful review. Hicks v. Halsey, 402 S.W.3d 79, 84-85 (Ky. App. 2013) (citing Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011); Keifer v. Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011)). "[A] rigid standard of reciting statutory standards—coupled with supporting facts—has now become a requirement." Hicks, 402 S.W.3d at 84.

These findings are particularly important in cases such as the present one. The family court instituted a drastic modification in the parties' timesharing, despite evidence that a good portion of this young child's life has been spent at the mother's home and in her care, and without the court making any findings regarding how such a modification can be in the child's best interests. The findings are even more necessary under the facts of this case given that the court failed to allow any visitation between the child and the mother for the twenty-eight day period the father is exercising timesharing, wherein the record evidence shows that the child is highly accustomed to spending the majority of her time at the mother's home. Accordingly, we vacate the order under review and remand this case to the family court to make the requisite findings required by the binding precedent of Anderson, 350 S.W.3d 453, Keifer, 354 S.W.3d 123; and Hicks, 402 S.W.3d 79.

DIXON, JUDGE, CONCURS.

THOMPSON, JUDGE, DISSENTS.

Source:  Leagle

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