Benton v. Sotingeanu

450 S.W.3d 714, 2014 Ky. App. LEXIS 172, 2014 WL 5419878
CourtCourt of Appeals of Kentucky
DecidedOctober 24, 2014
DocketNO. 2013-CA-001060-MR
StatusPublished
Cited by1 cases

This text of 450 S.W.3d 714 (Benton v. Sotingeanu) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benton v. Sotingeanu, 450 S.W.3d 714, 2014 Ky. App. LEXIS 172, 2014 WL 5419878 (Ky. Ct. App. 2014).

Opinion

OPINION

THOMPSON, JUDGE:

Joann Benton appeals from an order of the Perry Circuit Court ordering Joann to take the necessary action for the issuance of a passport for the parties’ minor child. She alleges the trial court modified the custody decree without making specific findings of fact as required by Kentucky Rules of Civil Procedure (CR) 52.01, the trial court abused its discretion, and the order was contrary to federal law and policy. We affirm.

Joann and Dan Sotingeanu, who never married, are the parents of a daughter, Lauren, born on July 12, 2004. In 2007, a custody decree was entered awarding joint custody and Dan timesharing with the parties’ daughter including two non-consecutive weeks during the summer, to be exercised one week at a time. Pursuant to the decree, Dan must give Joann notice as to the dates of his two non-consecutive weeks [716]*716of summer timesharing no later than May 1st of each year.

Dan desired to take Lauren on a vacation to the Bahamas requiring her to have a passport.1 However, federal law requires the consent of both parents or each of the minor’s legal guardians when applying for a passport for a minor under the age of sixteen. 22 Code of Federal Regulations (CFR) § 51.28. The regulation further provides a joint custody order is interpreted as requiring the permission of both parents. 22 CFR § 51.28(3)(ii)(G). There are exceptions that permit one parent or legal guardian to apply for the minor’s passport including when “a notarized written statement or affidavit from the non-applying parent or legal guardian ... consenting to the issuance of the passport” is provided. 22 CFR § 51.28(3)(i). The regulation also provides one parent may apply for the minor’s passport if an order of a court of competent jurisdiction specifically authorizes the applying parent to obtain a passport for the minor, regardless of the custodial arrangements or if it specifically authorizes “the travel of the minor with the applying parent or legal guardian[J” 22 CFR § 51.28(3)(ii)(E). Because of the joint custody arrangement and Joann’s refusal to consent, Dan filed a motion to require Joann to execute all forms necessary to enable Dan to obtain a passport for Lauren.

A hearing was held on May 10, 2013. The court heard arguments by counsel. Joann’s counsel expressed concern that if a passport was issued, Dan would take the child to Romania where he has family. Dan’s counsel pointed out Dan is a physician in the United States and a naturalized citizen and there was no evidence that Dan had any intent of abducting Lauren.

Joann testified and detailed the animosity between the parties and Dan’s failure in the past to apprise her of vacations taken with Lauren during his visitation periods. She was further permitted to testify regarding her own research into child abductions and opine that Dan fits “the profile” of a parent that would abduct his child to a foreign country.

After hearing arguments and Joann’s testimony, the court stated it would grant the motion and expressly stated the basis for its ruling: “There’s nothing that is going to be perfect, it’s a balance, and I’m not looking only to the interest of the parties, but I’ve said this so many times, that I’m looking to the best interest of the child.” However, the court indicated the motion was granted cautiously and imposed certain conditions upon any international travel by Dan with Lauren. A hearing was scheduled for June 3, 2013, for review of the final order.

The final order requires Joann to “immediately take whatever action is necessary to insure the issuance of the U.S. passport of the parties’ minor child.” The order imposes numerous safeguards for the trial court to monitor any international travel with Dan. The order requires that Dan post a cash bond prior to any international travel in the amount of $250,000 and that any such travel be approved by the trial court upon motion and notice. Dan must provide a preliminary itinerary prior to his departure and a hearing is to be conducted. Following that hearing, if the parties cannot agree, an additional hearing is required to approve the final itinerary. Until an order of the trial court requiring its release to Dan, Lauren’s passport remains in Joann’s possession. While on any [717]*717international trip, Dan must ensure that Lauren contact Joann three times per week, by telephone. After Dan and Lauren return from any international trip and compliance with the court’s conditions, the bond, with accrued interest, will be returned to Dan and the passport delivered to Joann.

Joann’s initial contention is that the trial court failed to make specific, written findings of fact and conclusions of law requiring that we reverse and remand the case to the trial court. Although she admits she did not request additional findings of fact pursuant to CR 52.04, she contends even absent such a request, the trial court was required to comply with CR 52.01.

CR 52.01 provides in part: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon[.]” The rule further provides: “Findings of fact and conclusions of law are unnecessary on decision of motions ... except as provided in Rule 41.02.”2 CR 52.04 provides:

A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.

In Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky.2011), the Court recognized there is “some tension between the language in CR 52.04, which requires a party to object to the lack of a finding of fact, and the language in the first subsection of the rule, CR 52.01, which mandates that a court make findings of fact and conclusions of law.” In the context of modifications of custody/timesharing decrees, the Court pointed out that although “a ‘motion,’ a motion for modification is actually a vehicle for the reopening and rehearing on some part of a final order[.]” Id. at 456-57. The Court held the trial court was required to make findings of fact and the failure of a litigant to request factual findings in the trial court did not preclude an appellate court from remanding the case to require the trial court to make such findings. Id. at 459. The Court reiterated the same reasoning and rule in Keifer v. Keifer, 354 S.W.3d 123, 126 (Ky.2011).

Joann contends the trial court’s order requiring her to execute the documents necessary for the issuance of a passport is a modification of timesharing requiring written specific findings of fact and conclusions of law. Dan maintains this was not an action “tried upon the facts” but was a motion that did not require written findings under CR 52.01.

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Bluebook (online)
450 S.W.3d 714, 2014 Ky. App. LEXIS 172, 2014 WL 5419878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benton-v-sotingeanu-kyctapp-2014.