2010-SC-000694-DGE
Published: Vacating and Remanding
County: Hardin
2010-SC-000694-DGE
Published: Vacating and Remanding
County: Hardin
Dad appealed CA’s reversal of TC order modifying parenting time without making specific findings, arguing to SC that written findings of fact are not required when TC rules upon a motion to modify visitation provisions of a prior decree, but even if they were required, Mom did not preserve the issue for appeal because she did not move TC for specific findings in accordance with CR 52.04.
FACTUAL AND PROCEDURAL BACKGROUND:
FC awarded Mom and Dad joint custody of children in divorce with no designation of primary residential parent, although effect of parenting time schedule was that Children primarily lived with Mom, a soldier in the Army. A year later, Mom received orders to relocate to Texas and filed a Motion to modify parenting time. After hearing, FC orally indicated that decree would be modified so that Children would live primarily with Dad with Mom having visitation. FC orally provided basis for this decision, specifically discussing factors from KRS 403.270 and several references to “best interests of the children.” Dad’s counsel agreed to submit written order reflecting the court’s decision; however, this Order, which was entered by FC, failed to provide any factual findings or application of KRS 403.270 or best interests of Child standard. Mom appealed FC’s Order to CA. CA reversed FC due to failure to reflect consideration of KRS 403.270 factors, but remanded for further proceedings with no further guidance to FC.
ANALYSIS:
“Compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and [trial courts must] include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions.”
SC also held that a FC’s failure to make the required findings of fact allows CA to remand for findings, even where no motion for specific findings is made. SC provided that, because it was familiar with FC’s oral findings, the case would be remanded to FC for entry of a new order setting forth in writing FC’s findings of fact and conclusions of law, but FC could, for this purpose, rely upon its discussion from the bench at the conclusion of the evidentiary hearing. However, SC noted that it would not expect appellate courts to search video records or transcripts and again emphasized the need for FC/TC to issue written findings.
CA’s order vacated and remanded.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
