Coffman v. Rankin

260 S.W.3d 767, 2008 Ky. LEXIS 159, 2008 WL 2484211

• Court: Kentucky Supreme Court
• Decided: June 19, 2008
• Docket: 2007-SC-000348-DGE
• Status: Published

Opinions

Opinion of the Court by

Chief Justice LAMBERT.

This court granted discretionary review of a decision of the Court of Appeals which reversed a child custody modification decree of the Hardin Family Court. For the reasons stated herein, we reverse the Court of Appeals and reinstate the Family Court’s order.

Appellant Brad Coffman and Appellee Debra Rankin fik.a. Debra Coffman were divorced by decree of the Barren Circuit Court¹ on January 8, 2001. At that time, they were granted joint custody of their children Kaitlyn (born January 25, 1995) and Nicholas (born December 3, 1997), with Appellee being named the primary residential custodian. By all accounts the parties worked amicably to ensure that the children spent plenty of time with both parents.

After a brief second marriage ended in divorce, Appellee announced her engagement to Dr. Thomas Rankin and her plans to move from Hardin County with Kaitlyn and Nicholas. On May 20, 2004, prompted by troubling information he had learned concerning Dr. Rankin’s mental and addiction problems,² Appellant filed a petition in Hardin Family Court to modify the Barren Circuit Court’s custody decree. During the pendency of this motion, Appellee sought and was granted permission by the Family Court to relocate to Jefferson County with the children and Dr. Rankin, to whom she was then married. An evi-dentiary hearing on the modification request was held on February 23, 2006. On May 21, 2006, the Hardin Family Court issued its findings of facts, conclusions of law, decree and order naming Appellant primary residential custodian of the children, holding that the best interests of the children would be served by a change in custody.³ After her motion to alter, amend or vacate was overruled, Appellee sought review by the Court of Appeals.

Despite Appellee’s failure to preserve the issue for review, the Court of Appeals held that the Family Court abused its discretion when it set for hearing Appellant’s motion to modify custody, rather than overruling the motion for failure to establish adequate cause for custody modification as required by KRS 403.350. Without adequate cause, the Court of Appeals reasoned, the Family Court proceeded without subject matter jurisdiction when it held the hearing which led to the modification of custody. Specifically, the Court of Appeals believed that Appellant’s motion was “vague and conclusory” and failed to present a sufficient factual basis to support a finding of adequate cause for a hearing.⁴ The Court of Appeals focused on the lack of “any mention of a risk of serious endangerment to the children’s physical, emotional, mental and moral health based on their present environment.”

The Court of Appeals based its conclusion on the view that the Family Court lacked subject matter jurisdiction. However, this Court has held that subject matter jurisdiction to adjudicate a motion to modify a child custody determination is obtained by filing a proper motion and affidavit.⁵ We reiterate that holding here. The Family Court determined that the moving papers were sufficient.⁶ Upon that determination, the court had subject matter jurisdiction to adjudicate the claim and proceed to the merits. There is no procedural vehicle to challenge the trial court’s determination that adequate cause for a hearing is shown. Such a determination is similar to an order overruling a motion for summary judgment. Any challenge must await the trial court’s final order and must be to the sufficiency of the evidence, a matter that must be preserved for appellate review. Therefore, the Court of Appeals’ reversal was in error.

Notwithstanding its view of the jurisdictional issue, the majority of the Court of Appeals went on to address the merits of case. In but a single paragraph reviewing the Family Court’s exhaustive finding of facts and conclusions of law, the Court discovered an abuse of discretion:

[I]t appears that the family court’s determination to modify custody was not based upon substantial evidence, but rather upon conjecture and speculation ... [W]e would have been required to hold that the findings of the family court were clearly erroneous and constituted an abuse of discretion. Our review of the record reveals that there was insufficient evidence presented to show that the children’s environment endangered seriously their physical, mental, moral or emotional health, or that the harm caused by modification would be outweighed by the advantages of such a change.

As its standard for review of the evidence, the Court of Appeals focused on the lack of allegations and evidence that the children’s environment “endangered seriously their physical, mental, moral or emotional health.”⁷ However, this is not the standard for modifying custody orders that have prevailed for two years or more. KRS 403.340 was amended by the General Assembly in 2001. From the effective date of the amendment, the “serious endangerment” standard ceased to be the only standard for custody modifications occurring more than two years after rendition of the order sought to be modified.⁸ In such a circumstance, courts are now authorized to change custody based upon the best interests of the child, utilizing the factors enumerated in KRS 403.270(2).⁹ A review of the Family Court’s decision and the record below shows that the trial judge explicitly applied the standards articulated in KRS 403.340 to the facts and circumstances of this case in reaching its conclusions of law.

As set forth in the Court of Appeals’ dissenting opinion, an appropriate standard of review in a child custody case is as follows:

Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court’s ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court’s decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.¹⁰

Upon our review of the record, we cannot say that the Family Court abused its discretion. This case was vigorously practiced before the Family Court for nearly two years. At the hearing, the court heard testimony from the parties and eleven witnesses. The children were interviewed by the Family Court judge in camera. Furthermore, the depositions of two witnesses who were unavailable for the hearing were admitted into evidence. After the hearing, the Family Court rendered thorough findings of fact and conclusions of law more than sixteen pages long. While reasonable minds may differ as to the proper outcome, it cannot be said the Family Court’s decision was unreasonable or unfair. Furthermore, the decision was not clearly erroneous and applied the proper law. As such, the Court of Appeals erred by substituting its judgment for that of the Family Court.

For the foregoing reasons, the decision of the Court of Appeals is hereby reversed and the Family Court’s decision is reinstated.

All sitting. ABRAMSON, MINTON, and NOBLE, JJ., concur. CUNNINGHAM, J., dissents by separate opinion in which SCHRODER and SCOTT, JJ., join.

1 . The parties and their children actually resided in Hardin County, but chose to file for dissolution in Barren County to avoid local publicity.

2 . Dr. Rankin acknowledged in the trial court that he had suffered from severe depression in the past and attempted suicide in 2000 after learning of his first wife’s extramarital affair. Dr. Rankin further testified that he had a past addiction to narcotics which led to his participation in the Kentucky Board of Medical Licensure’s Impaired Physicians Program.

3 . The order also dealt with ancillary matters such as recalculating the child support obligations of the parties, health care expenses and insurance for the children.

4 . Besides the allegations concerning Dr. Rankin, the motion to modify custody alleged, inter alia, that Appellee’s lifestyle was "unstable” and that she engaged in serial romantic relationships with at least ten other people.

5 . Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999).

6 . Appellee also claimed for the first time on appeal that Appellant’s failure to file a separate affidavit with his motion to modify custody was fatal to the request. However, we agree with the Court of Appeals’ conclusion that while filing a separate affidavit is the better practice, Appellant’s verified petition in this instance technically meets the requirements of an affidavit.

7 . The panel majority cites as authority for this principle the case of Betzer v. Betzer, 749 S.W.2d 694 (Ky.App.1988).

8 . Fowler v. Sowers, 151 S.W.3d 357 (Ky.App. 2004).

9 . KRS 403.340(3)(c); Fowler, 151 S.W.3d at 359.

10 . B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App.2005).