Crouch v. Crouch

SCOTT, Justice,

dissenting.

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).1 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(l)(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 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.

*468Simply put, there was nothing in the Agreed Order that stated the child would automatically go back to live with the Ap-pellee. 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 Dudgeon 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.1964); Renfro v. Renfro, 291 S.W.2d 46 (Ky.1956); McReynolds 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 extracurricular 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.3 Also, several members of her family lived in the area, but none lived in Lawrence-burg where her mother resides.

In Taylor, supra., a mother received custody on dissolution, but shortly thereafter, a tornado destroyed her personal belongings causing an “Agreed 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 *469best 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.

. 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).

. 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.

. Her mother testified that the child would once again be enrolled in a different school if custody was awarded to her.