Retherford v. Monday

500 S.W.3d 229, 2016 Ky. App. LEXIS 156, 2016 WL 4575605
CourtCourt of Appeals of Kentucky
DecidedSeptember 2, 2016
DocketNO. 2015-CA-001803-ME
StatusPublished
Cited by3 cases

This text of 500 S.W.3d 229 (Retherford v. Monday) 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
Retherford v. Monday, 500 S.W.3d 229, 2016 Ky. App. LEXIS 156, 2016 WL 4575605 (Ky. Ct. App. 2016).

Opinions

[230]*230OPINION

COMBS, JUDGE:

Appellant, April Retherford (April), appeals from a judgment of the Casey Circuit Court designating Appellee, Kyle Monday (Kyle), as the primary residential parent of the parties’ one. minor child. April contends that the court failed to make specific independent findings and that it merely adopted the proposed findings submitted by Kyle. We agree. Therefore, we vacate and remand with instructions.

April and Kyle were never married. They lived together for approximately four years—first in Indiana. They are the natural parents of one child (Daughter), born December 30, 2010, in Fayette County, Kentucky. Before they separated, the parties were living with Kyle’s paternal grandfather in Liberty, Kentucky. On April 13, 2012, April departed with Daughter and returned to her parents’ home in Kokomo, Indiana, where she currently resides. Kyle currently lives in Liberty, Kentucky.

The parties initially agreed to sharing joint custody of Daughter. However, contested issues arose as to the designation of the primary custodial parent, the time-sharing schedule, child support, and the residence of the child when she begins school.

On April 19, 2012, Kyle filed a Petition for Custody requesting joint custody and asking that he be designated as the primary residential parent. On April 23, 2012, April filed a Response which reflects that an Emergency Protective Order (EPO) gave her custody of the child and that the EPO had been dismissed. April sought temporary and permanent custody. She also filed a Motion for Temporary Custody and Child Support at that time.

■ Lengthy and quite protracted proceedings followed, including an order of the court that each party undergo psychological testing. April filed successive motions to compel Kyle to respond to her requests for discovery and to provide contact information. At one point during the course of the litigation, the Cabinet for Health and Family Services became involved.

On July 31, 2014, Jolene Blevins, a social worker for the Cabinet, received a phone call on an after-hours hotline. Mrs. Blevins testified at the trial about the allegations that the caller leveled at Kyle; ie., that he was “antigovernment” in his social/political orientation; that the house he was building in rural Casey County had no plumbing or electricity; that the son of his girlfriend had acted in a sexually inappropriate manner with the child; that the child appeared to be dirty and too thin after visitations with Kyle.

Mrs. Blevins followed up with law enforcement officials and undertook a visit and investigation concerning the allegations. Ms. Blevins did not see anything out of the ordinary, any indication that the child was afraid of Kyle, or any evidence that she had been sexually abused. Following the investigation and consultation with her supervisor, a joint decision was made that the matter was unsubstantiated and the case was closed.

More than two years after Kyle initiated his petition for custody, the trial court entered an order on August 8, 2014, directing the parties to continue the time-sharing arrangement already in place pending further orders of the court.

Numerous contested issues arose during deposition testimony and at trial concerning living arrangements for the child. Among them were: fitness of the house being built by Kyle, his alleged inattention to her medical and dental’ care, and the proper avenue for her education (ie, either [231]*231homeschooling or public schools). April testified that she has carefully tended to the child’s medical care and educational and cultural needs, including the child’s attendance at a Montessori school that goes through kindergarten.

At the conclusion of trial, the court directed the parties to submit proposed findings of fact and conclusions of law. April filed hers on May 11, 2015; Kyle’s were filed on May 18,2015.

On October 9, 2015, the court awarded joint custody, holding that it would be in the best interest of Daughter that she reside primarily with Father in Casey County, Kentucky, and that she attend the county’s public schools.

On October 19, 2015, April filed a Motion to Alter, Amend, or Vacate; she filed an amended Motion on October 26, 2015. By Order of October 26, 2015, the trial court granted the Motions in part and denied them in part. By agreement of the parties, the court amended its October 9, 2015, Order to continue the alternating two-week time-share schedule until Daughter begins kindergarten in the Fall of 2016. It also amended the date for April to pay child support to August 1,2016, The rest of April’s Motions and her requests for specific and/or additional findings of fact were denied. On November 23, 2015, April filed Notice of Appeal from the October 9, 2015, and October 26, 2015, orders.

On appeal, April contends that the trial court clearly erred in failing to make its own independent Findings of Fact and Conclusions of Law to support its Order of October 9, 2015. She also contends that the court erred in failing to order that Daughter should primarily reside with her in Kokomo, Indiana. . .

We shall restrict our discussion solely to the nature of the Findings and Conclusions, upon which ultimately the propriety of the decision will rest regarding the primary custodial parent.

CR1 52.01 provides in relevant part that “[i]n 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 and render an appropriate judgment —” The rule “mandates that a court make findings of fact and conclusions of law.” Anderson v. Johnson, 350 S.W:3d 453,458 (Ky,2011) (emphasis original).

We. .have carefully reviewed the trial court’s order of October .9, 2015. As April notes, the order as entered by the court bears the caption, “Petitioner’s Proposed Findings of Fact, Conclusions of Law and Judgment.” (Emphasis added.) The substantive content of the findings of fact, formatting, pagination, paragraph numbers, punctuation, and conclusions of law are identical to Kyle’s Proposed Findings of Fact, Conclusions of Law, and Judgment. In fact, both contain the same typographical or grammatical errors: at page 3, paragraph 13, the word “parent’s” should be “parents. ” At page 3, paragraph 16, line 4, the word “parties” should be “party’s.”

The only difference we can discern between the trial Court’s Order and Kyle’s proposed one is the effective date for calculating child support. At page 12, paragraph 5, of Kyle’s Proposed Findings of Fact, Conclusions of Law, and Judgment, the date is August 1, 2015. At page 12, paragraph 5, of the trial court’s October 9, 2015, Order, the date was changed to January 1, 2016, by using white-out/correction tape and writing over it. - The trial' court’s signature also appears' on .page 12—as [232]*232does the “tendered-by” signature of Kyle’s counsel.

The practice of adopting prepared findings of counsel as those of the court has been highly disfavored not only by CR 52.01 but by case law as well. The seminal case on this point is Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky.App.1979), which holds as follows:

[Alppellate courts of this state have universally condemned the practice of adopting findings of fact prepared by counsel.

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Cite This Page — Counsel Stack

Bluebook (online)
500 S.W.3d 229, 2016 Ky. App. LEXIS 156, 2016 WL 4575605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/retherford-v-monday-kyctapp-2016.