Austin Thomas McCormack v. Madison Taylor McCormack (Now Allen)

• Court: Court of Appeals of Kentucky
• Decided: June 13, 2024
• Docket: 2023 CA 000721
• Status: Unknown

Opinion

RENDERED: JUNE 14, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0721-MR

AUSTIN THOMAS MCCORMACK APPELLANT

APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE DAN KELLY, SPECIAL JUDGE ACTION NO. 19-CI-00214

MADISON TAYLOR MCCORMACK (NOW ALLEN) APPELLEE

OPINION VACATING AND REMANDING

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BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Austin McCormack appeals from the Russell Circuit Court’s

order modifying the custody and timesharing of his minor child with Madison

McCormack (now Allen). We agree with Austin that the trial court’s order was

deficient because it failed to include written findings supporting its custody and

timesharing modifications. Thus, we vacate the order and remand to the trial court

with directions for the entry of a new order that complies with the Kentucky Supreme Court’s decisions in Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011),

and Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011).

FACTUAL AND PROCEDURAL BACKGROUND

Austin and Madison married in 2016 and had one minor child born in

2018. Madison petitioned for a dissolution of the marriage in August 2019. The

parties entered into a separation agreement providing for joint custody of the child,

with Madison as the child’s primary custodian. The parties further agreed that

Austin would have timesharing every other weekend and one overnight visit each

week. Austin also agreed to pay $185.72 per month in child support. In

November 2019, the court approved the parties’ separation agreement and entered

a decree of dissolution.

In April 2021, Madison moved the court to require Austin to submit to

random drug screens and for the supervision of his timesharing. The court granted

the motion, and Austin submitted to a hair follicle drug screen in May 2021, which

was negative. Additionally, the court ordered that Austin’s parents supervise his

timesharing visits with the child.

Madison filed a motion with the circuit court on November 17, 2022,

to grant her sole custody of the child and to suspend Auston’s timesharing

arrangement. The circuit court heard the motion to modify on May 10, 2023, with

Austin participating pro se through Zoom. The court took testimony from the

-2- parties, and at the conclusion of the hearing, Austin requested a continuance to

retain an attorney. The trial court stated the following:

Let me tell you what the court is inclined to do. You have a certain responsibility here if you want some action by the court. And Ms. Allen has done what is necessary to bring change. She has filed the proper paperwork in court and she is here and has presented her evidence and she has raised some serious concerns in the mind of the court about the welfare of the child.

...

So, what I’m going to do is, at this time, I’m going to change the joint custody to primary custody in the mother. And I’m going to leave the issue of visitation to the mother. If you determine that some level of visitation is appropriate and you’re agreeable to it, you can do that. And if that doesn’t happen, Mr. McCormack, if you all aren’t able to reach any agreement, you’re gonna have to come forward with some proof. And the proof that I’m looking for would be an expert. A child psychologist, a social worker, somebody who would interview the child and interview you, and interview Ms. [Allen], and then tell the court. And that person can help the court determine whether or not, as you say, things aren’t being presented accurately. It will be the responsibility of the mother to make sure the child goes to wherever this interview by a child psychologist will be set up, but it has to be set up in this area and you are the one who has to arrange it and pay for it.

The docket sheet from the May 10, 2023, hearing provided in its

entirety:

Custody modified to sole custody w/ mother. Visitation w/in mother’s discretion.

-3- If Father arranges for an evaluation by local child counselor mother must make that happen. Father to pay costs.

Thereafter, the circuit court entered a written order on May 18, 2023,

granting Madison’s motion for sole custody and suspending Austin’s timesharing.

The court made no findings of fact or analysis in its order and failed to discuss any

changed circumstances or the child’s best interests pursuant to the custody decree

modification statute, Kentucky Revised Statute (“KRS”) 403.340(3). Further, the

court did not discuss the serious concerns it had alluded to at the conclusions of the

hearing. This appeal followed.

ANALYSIS

Austin’s primary argument on appeal is that the trial court failed to

make the required findings of fact and conclusions of law to modify custody and

timesharing in this case. When considering a custody modification motion made

more than two (2) years after the custody decree’s date, a court must make specific

findings that warrant a change in custody. KRS 403.340(3). The findings include

whether a change in the child’s or custodian’s circumstances has occurred and

whether a modification would be in the child’s best interests pursuant to KRS

403.270. KRS 403.340(3). The court must make a good-faith effort to make the

findings, and the findings must be included in a written order. Murry v. Murry,

-4- 418 S.W.3d 432, 435-36 (Ky. App. 2014) (citing Anderson, 350 S.W.3d at 458 and

Keifer, 354 S.W.3d at 125-26).

“Visitation, [or timesharing] . . . can be modified upon proper

showing, at any time . . . pursuant to KRS 403.320” based on the child’s best

interests. Pennington v. Marcum, 266 S.W.3d 759, 767 (Ky. 2008). Indeed, “[t]he

court may modify an order granting or denying visitation rights whenever

modification would serve the best interests of the child; but the court shall not

restrict a parent’s visitation rights unless it finds that the visitation would endanger

seriously the child’s physical, mental, moral, or emotional health.” KRS

403.320(3). Again, such findings must be made in writing by the court. Keifer,

354 S.W.3d at 126-27.

The Kentucky Supreme Court has:

state[d] with emphasis that compliance with [Kentucky Rule of Civil Procedure (“CR”)] 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and admonish trial courts that it is their duty to comply with the directive of this Court to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions, [as] [c]onsideration of matters affecting the welfare and future of children are among the most important duties undertaken by the courts of this Commonwealth.

Keifer, 354 S.W.3d at 125-26.

Moreover, even when a trial court makes oral findings from the

bench, “the trial judge’s duty is not satisfied until the findings have been reduced

-5- to writing.” Id. at 126. Additionally, a court’s “[f]ailure to [make any of the

statutorily required findings of fact] allows an appellate court to remand the case

for findings, even where the complaining party failed to bring the lack of specific

findings to the trial court’s attention.” Anderson, 350 S.W.3d at 458.

In this case, the trial court’s written order modifying Austin’s custody

and visitation rights failed to reflect any findings of facts or to indicate compliance

with the “best interest of the child” standard. While the trial court may have made

some oral findings from the bench, as already discussed, “the trial judge’s duty is

not satisfied until the findings have been reduced to writing.” Keifer, 354 S.W.3d

at 126. Thus, we agree that the order here was deficient, as the trial court was

obligated to make written findings of fact when it ruled upon Madison’s motion.

“A bare-bone, conclusory order such as the one entered here, setting forth nothing

but the final outcome, is inadequate and will enjoy no presumption of validity on

appeal.” Id. (footnote omitted).

CONCLUSION

Because the trial court did not reduce its findings and conclusions of

law to writing, we vacate the trial court’s order and remand to the trial court to

enter a new order that complies with KRS 403.340 and KRS 403.320.

ALL CONCUR.

-6- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Cameron C. Griffith Donald L. Wilkerson Lebanon, Kentucky Somerset, Kentucky

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