RENDERED : SEPTEMBER 21, 2006
TO BE PUBLISHED
,suirtrinve caurf of
2005-SC-0761-DGE
CHARLES JACKSON CROUCH III APPELLANT
APPEAL FROM COURT OF APPEALS
V. 2004-CA-002004-MR
BOYD CIRCUIT COURT NO . 96-CI-0728
VIRGINIA EVA CROUCH APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Affirming
This appeal addresses the proper statutory procedure that must be followed in
order to modify child custody . Appellant, Charles Jackson Crouch, II, appeals from an
opinion of the Court of Appeals which reversed a trial court decision modifying custody.
The Court of Appeals found that the trial court lacked properjurisdiction to modify a
child custody arrangement between Appellant and Appellee, Virginia Eva Crouch . This
Court granted discretionary review, and we now affirm the Court of Appeals' opinion in
its entirety .
The facts in this case are not in dispute . The parties were divorced on December
17, 1996. Pursuant to the divorce decree and by consent of both parties, the trial court
entered an order granting them joint custody of their minor child, born July 1994, and
placing actual physical custody of the child with Appellee . The child resided with
Appellee until February 2003 when Appellee, a member of the Kentucky National
Guard, was notified and ordered to report to active federal duty within 72 hours
(presumably to be deployed overseas). In this very short time frame, Appellee was
forced to make expedited arrangements to transfer physical custody of the minor child
to Appellant for the duration of her active deployment . Both parties concede that it was
their intent for the custody transfer to be temporary and that Appellee would be entitled
to reassume physical custody of the minor child upon being released from active duty.
On February 10, 2003, an agreed order drafted by Appellant's attorney and purporting
to memorialize these intentions was entered by the Boyd Circuit Court . The order
stated, among other things, that the child would reside with Appellant "until further
Orders of the Court."
Although not deployed overseas, Appellee was mobilized and deployed to Fort
Knox, Kentucky, for one year . During this time, Appellee made several trips to visit the
minor child in Raceland, Kentucky. In February 2004, Appellee contacted Appellant to
inform him that her active duty tenure had been served. Appellee also told Appellant
that she had been accepted to Officer Training School . The parties discussed and
agreed that Appellee should proceed with attending the four-month training since it
would be less disruptive and preferable to allow the minor child to finish the school year
at her current school and then transfer physical custody during the summer. At no time
did Appellant express any intention to not follow through with the custody transfer that
summer.
In July 2004, at the completion of the four-month training, Appellee contacted
Appellant to arrange for reassuming the minor child's physical care. At that time,
Appellant stated that he would not transfer physical custody and that Appellant would
need to obtain a court order to enforce their agreement . On July 28, 2004, Appellee
moved the trial court to enforce the December 17, 1996, permanent custody order. On
August 30, 2004, the trial court entered an order finding that it was in the minor child's
best interests to remain with Appellant . In formulating its decision, the trial court stated :
The Court finds from the evidence that at the time the agreed order was
executed it was the intent of both parties that the child would be returned
to the physical custody of [Appellee] at the conclusion of [Appellee's]
military alert. If the agreed order had been a contract for the sale of
goods, the parties' intent would control as a matter of law. However, in the
present arrangement the Court must consider the best interests of the
child.
Appellee appealed the trial court's decision to the Court of Appeals . The Court of
Appeals found that the February 10, 2003, order was temporary and thus not a
modification of the December 17, 1996, permanent custody order. As such, the trial
court had no jurisdiction to modify the December 17, 1996, order unless a motion to
modify, along with a supporting affidavit, was filed in the case . KRS § 403.350 ; Petrey
v. Cain, 987 S.W.2d 786, 788 (Ky. 1999). Moreover, even if the trial court did have
proper jurisdiction, it failed to follow the proper standard of review. See KRS § 403 .340 ;
Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky. App. 2004)(under KRS § 403.340,
modification is permitted if the trial court finds "a change has occurred in the
circumstances of the child or his custodian" and "modification is necessary to serve the
best interests of the child").
Appellant challenges the Court of Appeals' opinion, arguing that the February 10,
2003, order was not a temporary order and thus did operate to modify the December
17, 1996, permanent custody order . As such, the trial court properly treated Appellee's
July 28, 2004, motion as a motion to modify the February 10, 2003, order, which was
properly denied.' To support its position, Appellant cites language in the February 10,
2003, order which states, "the parties have agreed that the child shall be allowed to
reside with [Appellant] until further Orders of the Court ." Appellant contends that such
language should be interpreted as conclusive proof that the February 10, 2003, order
resulted in a permanent change in custody, regardless of any contrary intent by the
parties or the trial court. We decline to adopt such a bright line interpretation in this
case.
Although orders of the trial court are not contracts or statutory provisions, we
believe that interpretative guidelines employed in such cases are instructive . When
interpreting statutory language, KRS § 500.030 states, "[a]II provisions of this code shall
be liberally construed according to the fair import of their terms, to promote justice, and
to effect the objects of the law." When interpreting contracts, "[i]n the absence of
ambiguity a written instrument will be enforced strictly according to its terms." Frear v.
P.T.A. Industries, Inc., 103 S.W.3d 99,106 (Ky. 2003)(quoting O'Bryan v. Massey-
Fernuson, Inc. , 413 S .W.2d 891, 893 (Ky. 1966)). Where ambiguity exists, "the court
will gather, if possible, the intention of the parties from the contract as a whole, and in
doing so will consider the subject matter of the contract, the situation of the parties and
the conditions under which the contract was written, by evaluating extrinsic evidence as
to the parties' intentions." Id .
Interpreting court orders differs from that of statutes and contracts only to the
extent that instead of construing the intent of the legislature or the intent of the parties,
we must determine the intent of the ordering court. In W .T. Sistrunk & Companv v.
' Of course, even if this were found, the trial court still applied the incorrect standard of
review since modification of any permanent custody order is subject to the standards
set forth in KRS § 403.340 .
Kelis , 706 S .W.2d 417, 418 (Ky. App. 1986), the Court of Appeals held that " the legal
significance of language in an administrative order is always subject to interpretation by
a reviewing court, which must enforce such orders according to existing law." Similarly,
and in accordance with applicable principles of statutory and contract interpretation, we
believe that the legal significance of any particular trial court order is subject to
interpretation by a reviewing court. Where the language of the order is clear and
unambiguous, we will construe the order according to its plain terms. However, where
the order is ambiguous and open to interpretation, we will endeavor to construe and
effectuate the intent of the trial court.
The terms of the February 10, 2003, order are by no means clear when read and
considered in their entirety. In context, the order's relevant language states:
That [Appellant] and [Appellee] shall continue to have joint custody of the
parties' minor child, [redacted] . The parties having informed the Court that
[Appellee] has been called to active military duty, the parties have agreed
that the child shall be allowed to reside with [Appellant] until further Orders
of the Court .
Although the phrase "until further orders of the court" is generally construed to denote
permanency, when the phrase is read in the context of this order, it could also be
reasonably interpreted to indicate that the trial court will transfer custody back to
Appellee upon completion of her active military duty . This ambiguity is further
supported by the fact that no relevant findings or affidavits pursuant to KRS § 403.340
are present or referenced in the language of the February 10, 2003, order, nor is there
any reference whatsoever to the December 17, 1996, permanent custody order being
modified thereby.
2 Of course, the power of the trial court to correct and modify its own orders pursuant to
CR 60.01 and CR 60.02 remains and is completely unaffected by this opinion . See ,
e .g_, Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S .W .3d 454,
456 (Ky. 2002).
In light of the inherent ambiguity of the February 10, 2003, order, we next look to
the intention of the trial court which is undisputed in this case. By its own admission
and pursuant to the plain language of the order itself, the trial court intended to
accomplish the intent of the parties, who both agree that the order was meant to be
temporary . It is therefore our duty to interpret the ambiguity in this case in favor of the
trial court's intent. As such, we affirm the Court of Appeals' holding that the February
10, 2003, order was temporary and thus, did not effectuate a modification of the
December 17, 1996, permanent custody order. The trial court abused its discretion
when it refused to grant Appellee's July 28, 2004, motion to enforce the terms of the
December 17, 1996, permanent custody order.
We also note that, although not controlling in this case, our interpretation of the
February 10, 2003, order is consistent with the newly enacted KRS § 403.340 (5) which
provides as follows:
(5) (a) Except as provided in paragraph (b) of this subsection, any court-
ordered modification of a child custody decree, based in whole or in part
on:
1 . The active duty of a parent or a de facto custodian as a regular member
of the United States Armed Forces deployed outside the United States ; or
2 . Any federal active duty of a parent or a de facto custodian as a member
of a state National Guard or a Reserve component ;
shall be temporary and shall revert back to the previous child custody
decree at the end of the deployment outside the United States or the
federal active duty, as appropriate .
(b) A parent or de facto custodian identified in paragraph (a) of this
subsection may consent to a modification of a child custody decree that
continues past the end of the deployment outside the United States or the
federal active duty, as appropriate .
Id . (2006 Kentucky Laws Ch. 252 (HB 380), approved April 24, 2006).
For the reasons set forth herein, the decision of the Court of Appeals is affirmed .
6
Lambert, C .J., Graves, Minton, and Wintersheimer, J.J., concur. Scott, J .,
dissents by separate opinion in which Roach, J ., joins . McAnulty, J., not sitting.
ATTORNEY FOR APPELLANT
Jeffrey L. Preston
Attorney at Law, P.S.C .
Post Office Box 365
Catlettsburg, KY 41129
ATTORNEY FOR APPELLEE
Michael L . Judy, Esq.
312 W . Main Street
Frankfort, KY 40601
RENDERED : SEPTEMBER 21, 2006
TO BE PUBLISHED
6$ixpxrme Courf of ~Pnfixxkg
2005-SC-0761-DGE
CHARLES JACKSON CROUCH III APPELLANT
VS. APPEAL FROM COURT OF APPEALS
2004-CA-002004-MR
BOYD CIRCUIT COURT NO. 96-CI-0728
VIRGINIA EVA CROUCH APPELLEE
DISSENTING OPINION BY JUSTICE SCOTT
Respectfully, I must dissent.
All the differences of opinion in this case center around the unexpected -
but wonderfully successful - changes that occurred in a young girl's life within a
period of seventeen months when she went to live with her other parent . One
side applauds the changes, yet establishes a precedent that mandates the trial
court ignore the child's success in life in favor of the status quo. The other would
focus on the success and allow the trial court the leeway to make appropriate
decisions helpful in the life of a young child, given her success in building a new
life. Count me in the latter .
The February 10, 2003 Agreed Order from the Boyd Circuit Court stated
that "the child shall be allowed to reside with the [Appellant] until further orders of
the Court," plainly modifying the original custody agreement entered into by the
parties in their 1996 Decree and Settlement Agreement. This order was then the
dominant order for the child's custody.
Thus, to reconsider the child's custody arrangement, the Boyd Circuit
Court correctly conducted a custody hearing pursuant to KRS 403 .340(3) due to
the change in circumstances, i .e. her mother's completion of her active duty tour.
It was then the court's statutory duty to evaluate the situation using the factors
set out in KRS 403.340(2)(3)(a-f) and KRS 403.270(2).' Cf. Fenwick v. Fenwick,
114 S .W.3d 767, 783 (Ky. 2003)("[T]here is no requirement for modifying joint
custody other than such requirements as may be expressed by [KRS 403.340
and 403.350] ."). Thus, it was appropriate for the court to consider the child's
interaction and interrelationship with her parents and any other person who may
significantly affect the child's best interest, as well as, considering the child's
adjustment to home, school, and community . KRS 403 .270(1)(c) and (d). 2
Furthermore, the burden of supplying the affidavits required by KRS
403.340(2) was on the Appellee, as she was the one moving to change the
physical custody. Undoubtedly, the purpose of both statutes is to place the
burden of proof on the parent seeking to modify custody so as to encourage
' Even though the majority states that the correct standard was KRS 403.340,
403.340(3)(c) specifically references the factors set out in KRS 403.270(2) .
2 We note that the legislature has since amended KRS 403.340, incorporating
(5)(a-b) which sets out what should be done when the court-ordered modification
of custody is done based upon a parent's active duty as a member of the Armed
Forces. It now states that the custody "shall be temporary and shall revert back
to the previous [custody] decree at the end of the deployment . . . as
appropriate ." We must assume that "as appropriate" would mean as long as it is
not against the best interest of the child, since the custodial change is obviously
not automatic . Moreover, when a statute grants discretion, it always grants
enough to accomplish the statutory purpose.
-2-
stability in the custodial relationship . However, here, the majority places the
burden of the affidavits on the Appellant, even though he was the custodian at
the time and the Appellee was the movant who wanted physical custody
changed .
Simply put, there was nothing in the Agreed Order that stated the child
would automatically go back to live with the Appellee . A further order from the
court was required . If the court only meant the order to remain in effect until
Appellee returned from deployment, the order would have said that; but, it did not
- and for good reason . Speculation (as to the future circumstances), even by a
court, would be inappropriate when "the best interest of [a] child" is involved .
For the purpose of review, "the [trial] Court must be found to have been
clearly erroneous in its findings of fact, or clearly abused its discretion in that the
child's best interests will not be served," and that seems to be the unchanged
standard since 1972. Ralph S. Petrilli, Kentucky Family Law, Custody of
Children, § 26.22 Appellate Review (1988)(citing Largent v. Largent, 643 S.W.2d
261 (Ky. 1982) ; Enlow v. Enlow 456 S.W.2d 688 (Ky. 1970) ; Whisman v.
Whisman, 401 S .W.2d 583 (1966); Hinton v. Hinton , 377 S .W .2d. 888 (Ky.
1964)) . Thus, "if the [trial] Court was not clearly erroneous in its findings of fact,
or clearly abused its discretion its decision [should] be affirmed . " Id. (citing
Dundgeon v. Dudgeon , 458 S.W.2d 159 (Ky. 1970); Rudd v. Rudd , 419 S .W.2d
573 (Ky. 1967) ; Gates v. Gates, 412 S.W.2d 223 (1967); Yelton v. Yelton, 395
S.W.2d 590 (Ky. 1965); Hall v. Hall, 386 S .W.2d 448 (Ky. 1965); Renfro v.
Renfro, 291 S.W.2d 46 (Ky. 1956); McRenvolds v. Hughes , 398 S.W.2d 482 (Ky.
1966); See also, Taylor v. Taylor, 591 S.W.2d 369 (Ky. 1979)) .
Here, the parties mutually agreed the child would live with the Appellant
until further orders of the court . To obtain such an order, a motion must be filed .
Here, the Court of Appeals and the majority of this Court make it the Appellant's
duty to file a motion for custody of his child, even though he already has custody .
This is simply not logical .
Appellee made a motion to change custody of the child, as she should
have . The court then correctly noted in its order that the parties had joint legal
custody and that it must consider the criteria contained in KRS 403 .270(2) to
determine whether that modification should be changed back to its original terms.
Therefore, the court conducted a complete custody hearing, including testimony
of the parties and an interview with the child . The court then noted that the child
had previously enrolled in five different schools within a relatively short period of
time, sometimes having to move to another school during the school year . At the
time of the hearing, she was well adjusted, having a GPA of 3 .7, and was deeply
involved in extra-curricular activities such as cheerleading, softball, as well as,
the talented and gifted program . She had finished third grade there, all of fourth
grade, and was getting ready to start fifth. Moreover, she expressed a strong
preference to remain with the Appellant because she was integrated into a new
school system and liked her teachers and had made good friends . Also, several
members of her family lived in the area, but none lived in Lawrenceburg where
her mother resides .
In Taylor, su ra., a mother received custody on dissolution, but shortly
thereafter, a tornado destroyed her personal belongings causing an "Agreed
3 Her mother testified that the child would once again be enrolled in a different
school if custody was awarded to her.
-4-
Order of Custody" to transfer custody to her husband . When her life later
became stable, she moved the court to transfer custody back to her, and the
court then determined the best interest of the child was to live with the mother .
The Court of Appeals reversed, but this Court reversed the Court of Appeals and
upheld the trial court's decision . As in Taylor, the record here provides sufficient
evidence to support the Boyd Circuit Court's decision to keep the child in the
custody of her father. There was simply no abuse of discretion.
Based upon the evidence presented, the trial court found her best interest
was better served with the Appellant . That decision should have been affirmed .
It was not. Thus, I respectfully dissent .
Roach, J ., joins this dissent .