RENDERED: OCTOBER 17, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1414-MR
JASON WALLACE HOWARD APPELLANT
APPEAL FROM ANDERSON CIRCUIT COURT v. HONORABLE S. MARIE HELLARD, JUDGE CASE NO. 20-CI-00055
ELIZABETH TAYLOR HOWARD (NOW GRIDER) APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MOYNAHAN, JUDGES.
KAREM, JUDGE: Jason Howard (“Father”) appeals from an Anderson Circuit
Court order entered on November 12, 2024, ordering temporary supervised
visitation with his two children. Howard argues that the court erred in modifying a
final decree without conducting a hearing or making findings of fact. The
children’s mother, Elizabeth Taylor Howard Grider, (“Mother”) argues that his appeal should be dismissed because the order is interlocutory. She also seeks to
have Father’s appellant’s brief stricken for failing to comply with Kentucky Rules
of Appellate Procedure (“RAP”) 31 and 32.
Upon careful review, we hold that the order was appealable because it
modified a final decree and impacted the care and custody of two minor children.
The circuit court was required to conduct a hearing and make findings before
entering an order modifying visitation, even if temporarily. Consequently, the
order must be vacated and the case remanded for further proceedings. The
question of whether Father’s brief failed to comply with RAP 31 and 32 is
therefore rendered moot.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2014 and divorced in 2021. The
decree of dissolution, entered on August 11, 2021, incorporated a settlement
agreement providing for joint custody of their two children, then aged four and six,
and equal parenting time. The proceedings thereafter were extremely contentious.
On August 10, 2022, Mother moved for sole custody, to modify
parenting time, and to appoint a custodial evaluator. The motion alleged numerous
ongoing disagreements between Mother and Father over parenting issues such as:
exchange times and locations, daycare, alternate caregivers/first refusal, medical
care and providers, child support and daycare expenses, corporal punishment, and
-2- Father’s lack of cooperation with a court-appointed parenting coordinator. The
circuit court appointed a friend of the Court (“FOC”) ;1 ordered a custodial
evaluation by a psychologist; and scheduled a full-day hearing. The conflict
between the parents continued. Father filed motions to show cause and limit
timesharing, alleging that Mother had violated the divorce decree regarding the
children’s medical care and in scheduling their therapy. Mother and Father
participated in mediation, and an agreed order was entered on August 29, 2023, in
an attempt to resolve many of the co-parenting disputes.
On October 3, 2023, Mother filed a verified motion to show cause
why Father should not be held in contempt for multiple violations of the agreed
order. Father responded by alleging that Mother had also violated the order in
connection with the children’s medical care.
On December 5, 2023, the court entered an agreed order providing
Mother with sole custody. Father was to continue to have access to the children’s
medical and school portals, but all communications with the children’s school and
medical personnel, and related decisions were to be made by Mother. The existing
parenting schedule was to remain in full force and effect. According to Father, he
agreed to the order because he could not afford to pay his attorney due to the
excessive litigation.
1 Kentucky Revised Statute (“KRS”) 403.090.
-3- Several months later, on June 11, 2024, Mother moved to modify
timesharing to have the children reside primarily with her. She claimed that Father
was intruding on her sole custody and continued to communicate directly with
school personnel in violation of the agreed order. The motion was scheduled for a
hearing on November 21, 2024.
While the motion was pending, Mother filed a verified emergency
motion on October 3, 2024, seeking a temporary and immediate change in
parenting time and supervised visitation for Father. The motion alleged that Father
was manipulating the children and was not giving one of the children her
medication. Allegedly, Father was also continuing to disobey the agreed order by
reaching out directly to personnel at the children’s school. The motion requested
the children begin to reside primarily with Mother immediately. Father thereafter
served subpoenas duces tecum on the children’s medical and therapy providers,
seeking their records.
The parties appeared at motion hour on November 12, 2024. Father
was represented by new counsel, who had only just entered his appearance. The
court was informed that Father had directly contacted the children’s pediatrician
and that his attempts to obtain confidential records relating to the children’s
therapy had caused some of the children’s providers to quit. The court informed
Father that the records he was seeking were privileged and requested Mother’s
-4- attorney to prepare a protective order. The court stated that it would not address
the underlying visitation modification issue and that the current hearing would
focus solely on the supervision of Father’s visitation. The court stated that it
would now have to appoint a guardian ad litem (“GAL”) to represent the children.
The court expressed its frustration with Father’s conduct and told him that
although she did not want to order supervised visitation, she had “to take some
action on a temporary basis to put a stop to this.” The court entered an order
stating:
[Father’s] timesharing shall be temporarily supervised until such time as the [GAL] is able to have time to get involved in this difficult case, and a hearing may be had (the Court is necessarily having to continue the motion for supervision due to [Father] recently retaining new counsel, and due to the fact that a GAL is being newly appointed). The parties shall utilize The Butterfly House, or a Second Chance supervising agency. If the Cabinet becomes involved, then [Father] may have supervised visits at the Cabinet office if the Cabinet has workers available and who are willing to supervise visits.
The hearing on supervision of Father’s visitation was continued from
November 21, 2024, to February 21, 2025.
Father filed a Kentucky Rules of Civil Procedure (“CR”) 59.05
motion to alter, amend, or vacate the order, arguing that due process required the
court to conduct a hearing before ordering his visitation to be supervised. On
November 20, 2024, Father filed a pro se appeal from the November 12, 2024
-5- order. He additionally filed a motion for intermediate relief, pursuant to RAP 21,
which was denied.
On November 26, 2024, this Court entered an order directing Father
to show cause why his appeal should not be dismissed as interlocutory. Father
filed a response, and his appeal was allowed to proceed. On December 23, 2024,
the family court entered an order denying Father’s 59.05 motion and reiterated that
the November 12, 2024 order was temporary and that it had been prepared to move
forward on the hearing on November 21, 2024, but the hearing had been continued
at the request of Father’s counsel.
ANALYSIS
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: OCTOBER 17, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1414-MR
JASON WALLACE HOWARD APPELLANT
APPEAL FROM ANDERSON CIRCUIT COURT v. HONORABLE S. MARIE HELLARD, JUDGE CASE NO. 20-CI-00055
ELIZABETH TAYLOR HOWARD (NOW GRIDER) APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MOYNAHAN, JUDGES.
KAREM, JUDGE: Jason Howard (“Father”) appeals from an Anderson Circuit
Court order entered on November 12, 2024, ordering temporary supervised
visitation with his two children. Howard argues that the court erred in modifying a
final decree without conducting a hearing or making findings of fact. The
children’s mother, Elizabeth Taylor Howard Grider, (“Mother”) argues that his appeal should be dismissed because the order is interlocutory. She also seeks to
have Father’s appellant’s brief stricken for failing to comply with Kentucky Rules
of Appellate Procedure (“RAP”) 31 and 32.
Upon careful review, we hold that the order was appealable because it
modified a final decree and impacted the care and custody of two minor children.
The circuit court was required to conduct a hearing and make findings before
entering an order modifying visitation, even if temporarily. Consequently, the
order must be vacated and the case remanded for further proceedings. The
question of whether Father’s brief failed to comply with RAP 31 and 32 is
therefore rendered moot.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father were married in 2014 and divorced in 2021. The
decree of dissolution, entered on August 11, 2021, incorporated a settlement
agreement providing for joint custody of their two children, then aged four and six,
and equal parenting time. The proceedings thereafter were extremely contentious.
On August 10, 2022, Mother moved for sole custody, to modify
parenting time, and to appoint a custodial evaluator. The motion alleged numerous
ongoing disagreements between Mother and Father over parenting issues such as:
exchange times and locations, daycare, alternate caregivers/first refusal, medical
care and providers, child support and daycare expenses, corporal punishment, and
-2- Father’s lack of cooperation with a court-appointed parenting coordinator. The
circuit court appointed a friend of the Court (“FOC”) ;1 ordered a custodial
evaluation by a psychologist; and scheduled a full-day hearing. The conflict
between the parents continued. Father filed motions to show cause and limit
timesharing, alleging that Mother had violated the divorce decree regarding the
children’s medical care and in scheduling their therapy. Mother and Father
participated in mediation, and an agreed order was entered on August 29, 2023, in
an attempt to resolve many of the co-parenting disputes.
On October 3, 2023, Mother filed a verified motion to show cause
why Father should not be held in contempt for multiple violations of the agreed
order. Father responded by alleging that Mother had also violated the order in
connection with the children’s medical care.
On December 5, 2023, the court entered an agreed order providing
Mother with sole custody. Father was to continue to have access to the children’s
medical and school portals, but all communications with the children’s school and
medical personnel, and related decisions were to be made by Mother. The existing
parenting schedule was to remain in full force and effect. According to Father, he
agreed to the order because he could not afford to pay his attorney due to the
excessive litigation.
1 Kentucky Revised Statute (“KRS”) 403.090.
-3- Several months later, on June 11, 2024, Mother moved to modify
timesharing to have the children reside primarily with her. She claimed that Father
was intruding on her sole custody and continued to communicate directly with
school personnel in violation of the agreed order. The motion was scheduled for a
hearing on November 21, 2024.
While the motion was pending, Mother filed a verified emergency
motion on October 3, 2024, seeking a temporary and immediate change in
parenting time and supervised visitation for Father. The motion alleged that Father
was manipulating the children and was not giving one of the children her
medication. Allegedly, Father was also continuing to disobey the agreed order by
reaching out directly to personnel at the children’s school. The motion requested
the children begin to reside primarily with Mother immediately. Father thereafter
served subpoenas duces tecum on the children’s medical and therapy providers,
seeking their records.
The parties appeared at motion hour on November 12, 2024. Father
was represented by new counsel, who had only just entered his appearance. The
court was informed that Father had directly contacted the children’s pediatrician
and that his attempts to obtain confidential records relating to the children’s
therapy had caused some of the children’s providers to quit. The court informed
Father that the records he was seeking were privileged and requested Mother’s
-4- attorney to prepare a protective order. The court stated that it would not address
the underlying visitation modification issue and that the current hearing would
focus solely on the supervision of Father’s visitation. The court stated that it
would now have to appoint a guardian ad litem (“GAL”) to represent the children.
The court expressed its frustration with Father’s conduct and told him that
although she did not want to order supervised visitation, she had “to take some
action on a temporary basis to put a stop to this.” The court entered an order
stating:
[Father’s] timesharing shall be temporarily supervised until such time as the [GAL] is able to have time to get involved in this difficult case, and a hearing may be had (the Court is necessarily having to continue the motion for supervision due to [Father] recently retaining new counsel, and due to the fact that a GAL is being newly appointed). The parties shall utilize The Butterfly House, or a Second Chance supervising agency. If the Cabinet becomes involved, then [Father] may have supervised visits at the Cabinet office if the Cabinet has workers available and who are willing to supervise visits.
The hearing on supervision of Father’s visitation was continued from
November 21, 2024, to February 21, 2025.
Father filed a Kentucky Rules of Civil Procedure (“CR”) 59.05
motion to alter, amend, or vacate the order, arguing that due process required the
court to conduct a hearing before ordering his visitation to be supervised. On
November 20, 2024, Father filed a pro se appeal from the November 12, 2024
-5- order. He additionally filed a motion for intermediate relief, pursuant to RAP 21,
which was denied.
On November 26, 2024, this Court entered an order directing Father
to show cause why his appeal should not be dismissed as interlocutory. Father
filed a response, and his appeal was allowed to proceed. On December 23, 2024,
the family court entered an order denying Father’s 59.05 motion and reiterated that
the November 12, 2024 order was temporary and that it had been prepared to move
forward on the hearing on November 21, 2024, but the hearing had been continued
at the request of Father’s counsel.
ANALYSIS
Father argues that the circuit court violated his due process rights by
entering the temporary supervised visitation order without first conducting a
hearing and making findings of fact. Mother argues that Father’s appeal should be
dismissed because the order is temporary and therefore interlocutory. We address
first the dispositive question of whether the order was interlocutory.
Following the entry of a final decree of dissolution, a circuit court
retains continuing jurisdiction over the case. “[T]he court granting the divorce
retains jurisdiction to revise orders relative to the care and custody of children.”
N.B. v. C.H., 351 S.W.3d 214, 219 (Ky. App. 2011) (citation omitted). “When, by
the exercise of its continuing jurisdiction, the family court enters an order
-6- regarding a minor child’s care and custody, that order is an appealable order and
this Court may review it.” Id. (internal quotation marks and citation omitted).
In a factually similar case, a father appealed from a post-decree order
modifying his visitation with his children and their therapy. Turner v. Turner, 672
S.W.3d 43 (Ky. App. 2023). The opinion addressed whether the order was
appealable, acknowledging that “the order might not facially appear final and
appealable under the requirements in CR 54.01 and CR 54.02 especially since the
family court envisioned possibly issuing additional rulings after the passage of at
least three months.” Id. at 50. Nonetheless, the Court concluded that the “order is
by its nature appealable as a decision impacting the custody and care of the minor
children.” Id. (citations omitted).
To summarize:
Timesharing that has been set by the court in an order on post-decree modification is final and appealable, partly because it is a modification of an already entered final order, and also because KRS 403.320(3) specifically allows a court to modify a final order “whenever modification would serve the best interests of the child.” (Emphasis added.) Thus a visitation order modifying a final order becomes the new final order and is subject to appeal.
Anderson v. Johnson, 350 S.W.3d 453, 455-56 (Ky. 2011) (footnote omitted).
The situation is different prior to the entry of a decree, when “a court
may enter temporary custody orders pursuant to KRS 403.280, and may determine
-7- timesharing/visitation pursuant to KRS 403.320, which may be modified whenever
it is in the child's best interests to do so. Any such decisions are ‘pendente lite,’
‘interlocutory’ or ‘non-final.’” Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky.
2008), as modified (Oct. 24, 2008).
The order specifying that Father’s visitation would have to be
temporarily supervised was entered post-decree, modified a final order, and related
to the children’s care and custody. Under the foregoing authorities, it was a final
and appealable order, even if the circuit court contemplated it being in place for a
relatively short time until a hearing could be conducted. Consequently, the order
was not interlocutory, and this appeal may go forward.
The circuit court in this case was faced with a difficult dilemma. It
was confronted with evidence that Father repeatedly violated the prior agreed order
by continuing to reach out to the children’s providers and by seeking to subpoena
their confidential records. It was unable to conduct a hearing on modification of
visitation because Father’s attorney had made his first appearance that day, and a
GAL had to be appointed to represent the children. The circuit court plainly stated
its order of supervised visitation was temporary until a full hearing on the issue of
visitation could be conducted. Nonetheless, “in domestic relations cases, post-
decree motions concerning visitation and timesharing modifications are ‘actions
tried upon the facts without a jury,’ CR 52.01, which require specific findings of
-8- fact and separate conclusions of law, followed by an appropriate judgment.”
Anderson, 350 S.W.3d at 454. We are unable to find any support for post-decree
temporary modifications of visitation that do not require a hearing and findings of
fact.
CONCLUSION
For the foregoing reasons, the order of temporary supervised visitation
entered on November 12, 2024, is vacated, and the case is remanded for further
proceedings in accordance with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jason Howard, pro se Patrick F. Graney Salvisa, Kentucky Shelbyville, Kentucky
-9-