Commonwealth of Kentucky Court of Appeals

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1 RENDERED: NOVEMBER 2, 2012; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR KENT MONTGOMERY APPELLANT APPEAL FROM BATH CIRCUIT COURT v. HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 10-CI DEBBIE MONTGOMERY APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: ACREE, CLAYTON AND DIXON, JUDGES. DIXON, JUDGE: Appellant, Kent Montgomery, appeals from an amended decree of the Bath Circuit Court establishing custody and visitation for the parties minor children. For the reasons set forth herein, we reverse and remand for further proceedings.

2 Kent and Debbie Montgomery were married in June 1999, and are the natural parents of three minor children. The parties separated in August 2010, and Kent thereafter filed a petition for dissolution of marriage in the Bath Circuit Court in September Pursuant to a temporary order, the parties were awarded joint custody of the children with a 50/50 timesharing arrangement. The parties settled all property issues through mediation; however, in February 2011, the trial court conducted a full evidentiary hearing to resolve the remaining issues related to permanent custody, timesharing and child support. In its March 8, 2011, Decree of Dissolution, the parties were awarded joint custody of the children with Debbie designated as the primary residential parent. Timesharing was similar to the temporary order, with Kent having the children from 1:00 p.m. Sunday until 4:00 pm Wednesday each week. In addition, the parties were to equally split time during the summer school vacation. On March 18, 2011, Kent filed a motion to alter, amend or vacate the judgment, seeking primarily to correct what he believed were several factual errors in the decree, but also challenging Debbie s designation as the primary residential parent since the parties essentially shared equal parenting time. Kent s motion was scheduled to be heard on April 21, On March 29, 2011, Debbie filed a response to Kent s motion and a motion to amend timesharing, wherein she requested that the trial court interview the children concerning their wishes about the parties timesharing agreement. -2-

3 On April 6, 2011, despite having not yet heard the motion to alter, amend or vacate, the trial court entered an amended decree of dissolution, wherein it substantially limited Kent s timesharing. Specifically, Kent was allocated parenting time from 6:00 pm Friday until 6:00 pm Sunday for two consecutive weekends, as well as Tuesday and Thursday nights from 5:30 pm until 8:30 pm. In addition, Kent s summer visitation was reduced to the standard visitation under the circuit rules. Kent s subsequent motion to alter, amend or vacate the amended decree was denied and this appeal ensued. On appeal, Kent argues that the trial court s amended decree modifying his timesharing is erroneous in that it is not supported by substantial evidence. Further, Kent contends that the court erred in failing to record the interviews of the children, if such did, in fact, occur. After reviewing the record herein, we must agree. On appellate review, a trial court's factual findings made in the absence of a jury will not be set aside unless they are clearly erroneous. Sebastian Voor Properties, LLC v. Lexington Fayette Urban County Government, 265 S.W.3d 190, 195 (Ky. 2008). Factual findings are not clearly erroneous if they are supported by substantial evidence which constitutes evidence having the fitness to induce conviction in the minds of reasonable men. Rivers v. Howell, 276 S.W.3d 279, 281 (Ky. App. 2008). However, Kentucky Rules of Civil Procedure (CR) mandates that a judge who tries a case without a jury is to find the facts specifically and state separately... [his/her] conclusions of law thereon

4 The purpose of this requirement is to aid appellate courts in reviewing decisions below. As our Supreme Court observed in Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011), CR requires that the judge engage in at least a good faith effort at fact-finding and that the found facts be included in a written order. Failure to do so allows an appellate court to remand the case for findings.... Pursuant to Kentucky Revised Statutes (KRS) , a trial court may modify visitation rights at any time whenever such would serve the best interests of the child[.] Thus, in analyzing a modification of timesharing motion, a trial court is statutorily bound to consider all relevant factors including those specifically enumerated in KRS (2) in determining the best interests of the child. Again, in so doing, it is mandatory under CR that the facts be so found specifically. McFarland v. McFarland, 804 S.W.2d 17, 18 (Ky. App. 1991); see also Stafford v. Stafford, 618 S.W.2d 578 (Ky. App. 1981)(overruled on other grounds by Largent v. Largent, 643 S.W.2d 261 (Ky. 1982)). In the trial court s original March 11, 2011, decree, it determined, in pertinent part: 13. Taking into account the relevant factors set out in KRS (1) and considering the parties relationship to the children, the children s adjustment to their home, school and community, the testimony of some of their teachers and testimony of the parties it is in the best interest of the children that the parties share joint custody... with [Debbie] designated as the primary custodial parent. 14. [Kent] shall visit each week starting at 1:00 pm on Sundays until 4:00 pm on Wednesdays at a minimum -4-

5 with additional time as the parties may agree. Holiday visitation will be per the Standard Order if the parties do not agree otherwise and the parties will split the summer visitation with any vacations at the reasonable notice to each other. The April 6, 2011, amended decree provided: 12. Taking into account the relevant factors set out in KRS (1) and considering the parties relationship to the children, the interviews with the children, the children s adjustment to their home, school and community, the testimony of some of their teachers and testimony of the parties it is in the best interest of the children that the parties share joint custody... with [Debbie] designated as the primary custodial parent. 13. During school [Kent] shall visit with the children from Friday at 6:00 pm until Sunday at 6:00 pm for two consecutive weekends followed by [Debbie] keeping the children the following weekend.... [Kent] shall have two midweek visits from 5:30 until 8:30 on Tuesdays and Thursdays of each week. Summer visitation and holidays shall be according to the standard visitation orders of this jurisdiction. We are of the opinion that neither decree contained the necessary factual findings. The trial court did not specifically address any of the statutory factors set forth in KRS (2) in relation to the evidence presented, and thus failed to analyze the statutory best interest factors to ensure that a custody determination for each child was individualized and his or her unique circumstances accounted for. Squires v. Squires, 854 S.W.2d 765, 769 (Ky. 1993). Furthermore, based upon the language of paragraph twelve in the amended decree we must assume that the trial court s decision to modify timesharing less -5-

6 than one month after initially establishing it was based upon interviews with the children. However, neither party has confirmed that such interviews took place nor is anything in the record pertaining to such. KRS (1) provides: The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case. When applying KRS (1), family courts have broad discretion in deciding the best manner of ascertaining the child's wishes regarding custody, visitation, and timesharing. Couch v. Couch, 146 S.W.3d 923, 925 (Ky. 2004). However, as the Kentucky Supreme Court explained: Id. We are cognizant of the fact that in many instances it may be helpful for the trial court to privately interview the child whose welfare is so vitally affected by the trial court's decision in an attempt to protect him or her from the pain of openly choosing sides. Nevertheless, it is the parties' constitutional right to hear all of the evidence offered in the case.... The parties are entitled to know what evidence is used or relied upon by the trial court, and have the right generally to present rebutting evidence or to cross-examine, unless such right is waived. If a trial court accepts and acts upon statements made by the child during the in camera interview, it is manifestly unfair not to record and disclose the contents of the interview in order to provide an opportunity for rebuttal. (Citation omitted). -6-

7 In this case, the trial court entered an amended decree substantially modifying Kent s parenting time based upon what we must assume were interviews with the children. Unfortunately, the deficient findings of fact and the lack of information about the interviews prevent any review of whether the modification was in the children s best interest. Accordingly, we reverse the amended decree and remand this case for additional proceedings. On remand, the court shall consider the relevant statutory factors and make specific findings of fact before reaching the ultimate legal conclusion as to the timesharing arrangement that is in the children s best interest. The amended decree of the Bath Circuit Court is reversed and this matter is remanded for further proceedings consistent with this opinion. ALL CONCUR. BRIEF FOR APPELLANT: Monica Hill Morehead, Kentucky BRIEF FOR APPELLEE: Ira S. Kilburn Salt Lick, Kentucky -7-

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