Mother and Father were never married but shared one (1) child in common. Pursuant to the Parties’ mediated Agreement (“the Agreement”), the Parties were to share joint custody of their minor child and jointly make all decisions related to their child’s education, medical, and religious upbringing. The Agreement also granted Mother final decision-making authority in the event the Parties could not agree after consulting with one another as to certain parenting decisions.
Prior to mediation and immediately following, Father objected to Mother’s insistence that the child be enrolled at a Louisville elementary school, Whitney Young, despite the Parties living in Fayette County (Lexington). Father contended that enrolling the child in Whitney Young would require significant travel time that would affect his parenting time and his ability to participate in the child’s school activities. Father also raised concerns over Whitney Young’s low test scores.
Against Father’s objections, Mother enrolled the child at Whitney Young for the 2021-2022 academic year. Father filed an Emergency Motion to Enforce and Amend the Mediation Agreement, arguing that Mother’s choice was unreasonable and should be considered a de facto relocation, thus directly violating Father’s joint custody rights. Father’s motion sought an award of attorney fees associated with having to litigate the issue created by Mother’s unilateral decision making. A hearing on Father’s motions was scheduled for December of 2021.
At the hearing, the Whitney Young Assistant Principal testified that the school was no longer offering its French Immersion Program and was unlikely to resume the program during the 2021-2022 school year. Mother testified that her primary reason for enrolling the child in Whitney Young was for the child to participate in the French Immersion Program, as the child was fluent in French. Mother also mentioned the school’s International Baccalaureate program.
Additionally, the Assistant Principal testified that all students attending Jefferson County Public Schools must register under a Jefferson County address. Mother acknowledged that she had rented an apartment in Jefferson County to enroll the child at Whitney Young and planned on living in the apartment with the child during the school year.
Father testified as to his concerns for the child attending Whitney Young. First, Father expressed concern over the effect the enrollment in a Jefferson County school may have on his parenting time. Second, Father mentioned that after examining the most recently published data from the 2019-2020 school year, Whitney Young had test scores in the bottom 20% of the state and had an alarming number of behavioral events.
The Fayette County Family Court issued oral findings following the December 2021 hearing. The Family Court granted Father’s Motion to enforce the Agreement but declined to modify the Agreement. The Court found that although the Parties’ Agreement granted Mother final-decision making authority over educational matters, the Agreement did not permit Mother to make unreasonable educational decisions or unilaterally make decisions that may significantly alter Father’s relationship with the child. The Court found Mother’s decision to send the child to Whitney Young to be unreasonable due to the unavailability of the French Immersion Program that drew her to the school and the school’s low test scores. The Court also found that the travel time between Jefferson County and Fayette County would affect Father’s parenting time. The Court predicted that this enrollment would later become Mother’s basis for a Motion to relocate and admonished such behavior.
The Family Court ordered Mother to immediately enroll the child in school in Fayette County and took the Parties’ cross-motions for attorney fees under submission. The Court subsequently entered an Order awarding Father $8,000 in attorney fees due to the litigation being a direct result of Mother’s unilateral decision making in violation of joint custody.
The Court of Appeals also denied Mother’s motion to strike Father’s responsive brief for failure to include ample supportive references to the record in his Argument section of the brief, in violation of RAP 32(B)(4).
The Court declined to dismiss the appeal as moot, despite Father’s contention that there was no longer a matter in controversy because the French Immersion Program was never reinstated at Whitney Young. The appeal was deemed not moot for Mother’s additional argument that her decisions were not subject to judicial review under the language of the Agreement granting her final decision-making authority.
The Court of Appeals reviewed the family court’s interpretation of the Agreement de novo and concluded that the language in the Agreement indicated that Mother’s educational decisions would be final only after a good-faith effort to come to an agreement. Additionally, the Court of Appeals agreed with the family court’s determination that Mother renting a home in the Jefferson County school district amounted to a de facto relocation.
The Court of Appeals affirmed the Fayette Family Court’s decision determining that Mother’s choice to send the child to a school outside of Fayette County was unreasonable. The Court maintained the family court’s position that while Mother had final decision-making authority over educational decisions, her discretion was not unlimited. Mother’s choice was unreasonable due to the effect it would inevitably have on Father’s parenting time and ability to be involved in the child’s school activities. Additionally, Mother’s choice to rent an apartment in Jefferson County was essentially a relocation, for which she did not seek permission from Father or the family court.
The Court of Appeals found no abuse of discretion in reviewing the family court’s award of attorney’s fees, specifically noting that the family court must have made a finding of reasonableness prior to awarding fees. Both parties having filed affidavits in support of their respective motions for attorney’s fees and submitting evidence of their financial resources at the request of the family court, it was determined that Mother had more financial resources than Father and had been the primary cause of the litigation, making an award of attorney’s fees reasonable.
The Court of Appeals affirmed the Fayette Family Court Orders finding Mother’s choice to send the child to a school in Jefferson County unreasonable and awarding attorney’s fees.
Digested by: Kendall Box, Esq.
