JENNIFER L. HUCK v. BENJAMIN F. HUCK, JR.
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RENDERED: JULY 14, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002404-MR
JENNIFER L. HUCK
v.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
ACTION NO. 95-CI-00203
BENJAMIN F. HUCK, JR.
and HON. DENNIS A. FRITZ, JUDGE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, McANULTY AND MILLER, JUDGES.
McANULTY, JUDGE: This is an appeal from multiple orders in a
marriage dissolution.
Appellant, Jennifer Huck, asserts that the
trial court erred in holding her in contempt in its order dated
September 15, 1998.
We conclude that the trial court acted
within its discretion and therefore affirm.
Jennifer and Benjamin Huck were divorced by decree
entered March 14, 1996.
However, a trial was held to resolve
contested issues and the trial court then entered three sets of
findings and orders on December 18, 1997, another findings and
order on January 27, 1998, and another findings and order on
January 29, 1998.
Of crucial import to this appeal is Order #1 entered on
December 18, 1997, which provides, in pertinent part:
2. The Court enters the finding and
gives significant weight to the established
pattern of contact between the mother and
father concerning the children’s visitation
which has been established during the last
three years. The Court notes that the
contact between the mother and father has
been responsibly handled by both parties,
that they have cooperated in the inevitable
problems incident to the adjustments
necessary in their schedules and those of the
children, and that they have been very open
in allowing complete and full contact with
both parents and with the extended family.
3. The Court enters the finding
that based upon this established pattern both
parents have adequate parenting skills to
care for the children. Accordingly, the
Court finds that it is in the best interest
of the children that joint custody be
imposed, with the understanding that the
mother is the primary custodian. The mother
is to determine the residency of the children
and their education. With this order
concerning joint custody the Court would
further direct that both parties appear to be
in agreement that the children should remain
within the same school district to provide as
much continuity as possible.
4. The Court finds that Kentucky is
the home state of the children and directs
that neither parent is to remove the children
from the state of Kentucky with the intent to
establish a separate residence, absent an
agreement between the parties or as otherwise
Ordered by the Court. This finding by the
Court will avoid one party and/or the
children being detrimentally impacted by a
possible change of residency without prior
agreement as to how contacts are to be
handled. (Emphasis added)
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When Jennifer and the children left the marital home,
which was owned by Benjamin’s parents, they went to live with
Jennifer’s parents.
At that time, her parents were preparing to
sell their home in Oldham County and move to Tennessee.
Jennifer
filed a motion on June 1, 1998, to seek leave of the trial court
to move with the children to Tennessee.
Because the trial judge
was experiencing health problems, the matter was set for hearing
on September 16, 1998, by order dated June 12, 1998.
On July 15, 1998, Jennifer filed with the trial court a
notice that the residence in which she and the children had been
residing had been sold and that the children’s school in
Tennessee was scheduled to start on August 11.
She further
advised that she had attempted to arrange a visitation schedule
agreeable to Benjamin but that he had failed to respond.
Petitioner stated that she “desires not to be in contempt of this
Court by relocating with the parties’ children from Oldham
County.”
On August 11, 1998, Benjamin filed a motion requesting
a hearing at which Jennifer could show cause why she should not
be held in contempt for moving the children to Tennessee and
thereby failing to comply with the December 18, 1997 order of the
trial court.
The Court scheduled a hearing for August 28, 1998
and ordered that the children be present.
After the hearing the trial court found that Jennifer
had offered several reasons for her move with the children to
Tennessee.
The first consideration was purely financial.
parents were allowing her to live rent-free.
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Jennifer also
Her
indicated that she wanted the children to be educated in a
Seventh Day Adventist School and they were enrolled in such a
school in Tennessee.
She explained that there was a sense of
urgency because school began in August, before the September
hearing date.
The trial court further found that she did not
intend to violate court orders and that she relied on that part
of Order #1 which provides that as primary custodian, she is
permitted to determine the residency of the children.
However, the trial court concluded that Jennifer failed
to advance reasons sufficient to justify a change of residence
for the children to Tennessee.
He noted that the move was not
the result of a job reassignment, a remarriage and transfer or
other factors that were beyond Jennifer’s control.
The trial
court then held Jennifer in contempt of court and directed that
she could purge the contempt by returning the children to
Kentucky and enrolling them in Oldham County schools by September
28, 1998.
Jennifer filed an original action in this Court, No.
1998-CA-002365-OA, requesting emergency relief.
Judge Guidugli
granted the motion and stayed the contempt order until a three
judge motion panel could consider the motion for intermediate
relief pending appeal.
The motion panel then rendered an opinion
and order granting her request for relief pending appeal.
Jennifer asserts that the trial court erred in finding
her in contempt.
She further attacks the trial court’s ability
to restrict her from moving with the children from Oldham County.
-4-
Recently, a panel of this Court held that “[a]bsent an
order in the decree or a provision in the agreement between the
parties, a custodial parent - whether joint or sole - is not
required to seek court approval prior to moving to another
location.”
Stroud v. Stroud, Ky. App., 9 S.W.3d 579, 581 (1999).
There is no question that in the case sub judice, the decree
specifically states that as primary custodian, Jennifer should
obtain either the agreement of the parties or an order of the
court allowing her to move with the children from Kentucky.
The
reason given for this requirement is to “avoid one party and/or
the children being detrimentally impacted by a possible change of
residency without prior agreement as to how contacts are to be
handled.”
In this case, while Jennifer may have attempted to seek
court approval, the fact is that she moved with the children
before she obtained a court order permitting her to do so.
doing, she violated an express order of the court.
In so
Contempt is
the willful disobedience of -- or open disrespect for -- the
rules or orders of a court.
Commonwealth v. Burge, Ky., 947
S.W.2d 805 (1996).
“The purpose of civil contempt authority is to provide
courts with a means for enforcing their judgments and orders, and
trial courts have almost unlimited discretion in applying this
power.”
Smith v. City of Loyall, Ky. App., 702 S.W.2d 838
(1986).
We decline to hold that the trial court abused its
discretion in ordering Jennifer to return the children to
Kentucky.
To permit Jennifer to circumvent the procedure
-5-
required by the court’s order would in effect vitiate the court’s
power to enforce its order.
As such, we cannot find an abuse of
discretion.
We next turn to the question of whether the trial court
may deny Jennifer’s request to move with the children to
Tennessee.
Obviously, the trial court cannot prevent Jennifer
from seeking employment, marrying or being involved in other
circumstances which would result in her move from the
Commonwealth of Kentucky.
However, the court certainly retains
jurisdiction to resolve issues concerning the children.
403.340.
KRS
In that respect, the trial court has the authority to
review custody arrangements should there be any change of
circumstance.
The prospect of a move out of state may qualify as
a change in circumstance which could result in a modification of
custody, provided that the statutory guidelines in KRS 403.340
are followed.
As such, we cannot conclude that the trial court
erred in restricting Jennifer’s ability to move the children out
of state.
The order of the Oldham Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert S. Silverthorn, Jr.
Louisville, KY
James L. Theiss
Williamson, Simpson, Combs &
Theiss
LaGrange, KY
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