C.H., NOW C.M. v. R.C.H.
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RENDERED:
December 23, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002362-MR
C.H., NOW C.M.1
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 93-CI-01129
v.
R.C.H.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR, AND VANMETER, JUDGES.
JOHNSON, JUDGE:
C.M. has appealed from an order of the Campbell
Circuit Court entered on October 10, 2003, which, inter alia,
granted R.C.H.’s motion for a change of custody and awarded
R.C.H. sole custody of A.H.
Having concluded that C.M. is not
entitled to relief for any errors which may have occurred during
the temporary custody phase of the proceedings below, we affirm.
1
The parties will be referred to by initials to protect the interests of the
minor child.
On September 23, 1989, C.M. and R.C.H. were married in
Campbell County, Kentucky.
C.M. had given birth to the couple’s
only child, A.H., in June 1989.
On October 18, 1993, R.C.H.
filed a petition for dissolution of marriage in the Campbell
Circuit Court.
On June 20, 1994, the trial court entered a
decree dissolving the marriage of C.H. (now C.M.) and R.C.H.
Among other things, the trial court incorporated the couple’s
property settlement agreement into the decree of dissolution and
awarded C.M. the “care, custody and control” of A.H., while
granting R.C.H. visitation rights.
As the voluminous record shows, beginning immediately
after the decree of dissolution was entered and continuing
through the entry of the order from which C.M. has appealed,
both parties filed numerous motions before the trial court
regarding various issues related to the couple’s divorce.
Our
review of the record shows that for the most part, the parties
have been engaged in a continuous dispute with respect to the
issues of visitation and/or child custody since the decree of
dissolution was entered.
At some point in early 2000, A.H. was diagnosed with
Attention Deficit and Hyperactivity Disorder and dysthymia, a
chronic depressive mood disorder.
Among other things, A.H.
exhibited behavioral problems at home and in school, and
experienced difficulties in completing his homework.
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As both
parties have conceded in their briefs, C.M. and R.C.H. could not
agree from a parenting standpoint how to best handle A.H.’s
psychiatric problems.
Hence, in February 2000, the parties were
referred to Dr. Kimberly Wolfe, a registered custody evaluator
who began serving as a court-appointed monitor.
Approximately
one month later, in March 2000, Karen Tapp was appointed
guardian ad litem for A.H.
On August 31, 2001, R.C.H. filed a motion for a change
of custody.
In his accompanying memorandum, R.C.H. argued that
a “change has occurred in the circumstances of the minor child
and/or [C.M.], and modification is necessary in order to serve
the best interest of the child.”
On September 20, 2001, C.M.
filed a response opposing R.C.H.’s motion for a change of
custody.
On November 16, 2001, Dr. Wolfe filed a report
recommending, inter alia, that C.M. and R.C.H. undergo a “role
reversal” for a period of six weeks, i.e., R.C.H. would become
A.H.’s primary caretaker for that time period, while C.M. would
be given visitation rights.
In mid-December 2001 both R.C.H.
and Tapp filed motions asking the trial court to adopt and
enforce the recommendations of Dr. Wolfe.
On January 9, 2002, a hearing was conducted before the
Domestic Relations Commissioner.
During the hearing, R.C.H.
agreed to withdraw his motion for a change of custody and stated
that he would not renew any such motion until at least the end
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of the school year.
Following this hearing, the Commissioner
recommended that the parties follow Dr. Wolfe’s report.
By an
agreed order of the parties entered on April 3, 2002, C.M. and
R.C.H. agreed to undergo the “role reversal” as suggested by Dr.
Wolfe.
In early April 2002 the “role reversal” time period
began and continued for six weeks thereafter.
On July 11, 2002, C.M. filed a motion requesting the
trial court to enter a final order resolving any pending matters
related to visitation.
for August 2, 2002.
A hearing on C.M.’s motion was scheduled
On the date of the scheduled hearing, Tapp
filed a report in which she made several recommendations based
upon both her own observations and her consultations with Dr.
Wolfe.
In her report, Tapp noted that A.H. had expressed a
desire to spend “significantly” more time with R.C.H.
In
addition, Tapp recommended that “[p]hysical custody to [R.C.H.]
should be considered based on” the behavioral improvements A.H.
had exhibited since he began spending more time with R.C.H.
During the hearing held on August 2, 2002, R.C.H.
orally renewed his motion for a change of custody.
Three days
later, on August 5, 2002, R.C.H. filed a written motion for a
change of custody.
On August 7, 2002, the Commissioner entered
recommended findings of fact and conclusions of law.
Among
other things, the Commissioner recommended that R.C.H.’s motion
for a change of custody be granted, based upon findings that
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A.H.’s overall behavior had improved while he was with R.C.H.
The trial court entered a temporary order adopting the
Commissioner’s recommendations in full on August 7, 2002.
On August 9, 2002, C.M. filed objections to the
Commissioner’s recommendations, and a motion for a temporary
injunction seeking to stay the temporary order.
On August 15,
2002, C.M. filed a petition for a writ of prohibition2 with this
Court, arguing that the trial court had erred by considering and
eventually granting R.C.H.’s motion for a change of custody,
without first conducting a hearing.
C.M.’s motions before the
trial court were stayed pending the resolution of her petition
for a writ of prohibition in this Court.
In an order entered on
September 19, 2002, this Court denied C.M.’s request for
emergency relief, after determining that any errors the trial
court may have committed “would be correctable on appeal.”
On October 22, 2002, after the trial court had
conducted an “oral argument” regarding C.M.’s pending motions,
the trial court entered an order overruling C.M.’s objections to
the Commissioner’s recommendations.
The trial court ordered
that C.M. and R.C.H. complete the Cooperative Parenting and
Divorce Program at the Mediation Center of Kentucky, and stayed
the issuance of a final order regarding child custody until the
2
2002-CA-001727-OA.
-5-
program could be completed and a final hearing could be
conducted.
Following the entry of this temporary order, C.M.
filed a motion to reconsider or, in the alternative, to alter or
amend the trial court’s order.
Per the trial court’s request, a
hearing was held before the Commissioner on December 20, 2002.
Subsequent to this hearing, on January 14, 2003, the trial court
entered a temporary order adopting the Commissioner’s
recommended findings of fact and conclusions of law.
This
temporary order awarded C.M. and R.C.H. joint custody of A.H.,
but stated that R.C.H. would remain as the primary residential
parent, due to the progress that A.H. had made while in the
custody of his father.
On February 3, 2003, documentation was filed with the
trial court indicating that C.M. and R.C.H. had successfully
completed the eight-week parenting program at the Mediation
Center of Kentucky.
13, 2003.
A final custody hearing was held on May 12-
On August 21, 2003, the Commissioner filed her final
recommended findings of fact and conclusions of law.
In
pertinent part, the Commissioner determined that based upon all
of the evidence presented, A.H.’s overall health would be better
protected by awarding R.C.H. sole custody of A.H., while
granting C.M. visitation rights.
On October 10, 2003, after
considering and rejecting C.M.’s objections to the
-6-
Commissioner’s recommendations, the trial court adopted the
Commissioner’s recommended findings of fact and conclusions of
law in full.
This appeal followed.
C.M. makes four primary arguments on appeal: (1) that
the trial court erred by failing to conduct a hearing before
granting R.C.H.’s motions for a change of custody in its
temporary order entered on August 7, 2002; (2) that R.C.H.’s
motions for a change of custody did not meet the statutory
requirements of KRS3 403.340 and KRS 403.350, and that the trial
court therefore erred by considering R.C.H.’s motions; (3) that
since the trial court improperly awarded R.C.H. a temporary
change of custody in August 2002, the trial court erred when it
entered the final custody order by relying on the change of
circumstances which had taken place subsequent to the entry of
the temporary order; and (4) that C.M. was denied due process of
law when the Commissioner and the trial court engaged in
allegedly improper ex parte communications prior to the entry of
the temporary order in August 2002.
All of C.M.’s claims of error are based upon actions
taken by the trial court during the temporary custody phase of
the litigation below.
In Gladish v. Gladish,4 this Court, when
faced with a similar situation, stated:
3
Kentucky Revised Statutes.
4
Ky.App., 741 S.W.2d 658, 661-62 (1987).
-7-
Although we agree that the trial court
proceeded erroneously in conducting a
hearing to modify temporary custody on the
barren affidavits and further abused its
discretion in modifying the custody
arrangement, we cannot afford the appellant
any relief as the temporary order has been
replaced by a permanent custody decree.
While we recognize the practical effect of
the court’s temporary ruling, there was
nevertheless evidence, specifically the
testimony of psychologist, Dr. Sheila
Schuster, to support the court’s finding
that Amanda’s best interest would be served
by being placed in her father’s care. Thus,
under our standard of review, we cannot set
aside the final custody award because of
irregularities in the temporary custody
phase of the litigation [footnote omitted].
Although the trial court probably erred by failing to
conduct a hearing before granting R.C.H.’s motions for a change
of custody in August 2002,5 it is important to remember that the
trial court’s temporary order has been replaced by a permanent
custody order.
5
C.M. has not argued that the evidence which was
See KRS 403.350, which reads in full as follows:
A party seeking a temporary custody order or
modification of a custody decree shall submit
together with his moving papers an affidavit setting
forth facts supporting the requested order or
modification and shall give notice, together with a
copy of his affidavit, to other parties to the
proceeding, who may file opposing affidavits. If a
court determines that a child is in the custody of a
de facto custodian, the court shall make the de facto
custodian a party to the proceeding. The court shall
deny the motion unless it finds that adequate cause
for hearing the motion is established by the
affidavits, in which case it shall set a date for
hearing on an order to show cause why the requested
order or modification should not be granted [emphasis
added].
-8-
presented to the trial court before the entry of the final
custody order was insufficient to support the trial court’s
ultimate determination to award R.C.H. sole custody of A.H.
Therefore, we cannot grant relief to C.M. for any errors which
may have occurred during the temporary custody phase of the
proceedings below.
As a final matter, we must note that unlike the
appellant in Gladish, C.M. properly challenged the trial court’s
temporary custody order by filing a petition for a writ of
prohibition with this Court.
As we mentioned previously, this
Court denied C.M.’s petition after determining that any errors
committed by the trial court “would be correctable on appeal.”
We disagree and conclude that this Court erred by failing to
consider the merits of C.M.’s petition.
As this Court stated in
Gladish, since an aggrieved party may not appeal from a
temporary custody order, the proper action is to seek relief by
filing a petition for a writ of prohibition.6
6
However, this
See Gladish, 741 S.W.2d at 661 (stating that “the court acted erroneously in
changing its temporary custody order. First, the affidavits were not
sufficient for their intended purpose as a matter of law. KRS 403.350
specifically provides that ‘[t]he court shall deny the motion unless it finds
that adequate cause for hearing the motion is established by the affidavits
. . . .’ As stated hereinbefore, the affidavits submitted to change
temporary custody contained no facts upon which the court could find cause
for a hearing but instead were vague and conclusory. Under those
circumstances it was an abuse of discretion for the court to entertain
Bruce’s motion. Forcing Deborah to defend her role as temporary custodian on
such short notice and without benefit of the facts upon which the movant
intended to rely was a particularly egregious denial of due process.
However, her remedy was to file an original action in this Court seeking to
prohibit the trial court from conducting the hearing. Such extraordinary
relief is appropriate where the court is acting erroneously in its
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Court’s order denying C.M.’s petition has since become the law
of the case.7
Where the law-of-the-case doctrine is invoked, we
will not disturb the previous decision, even if it is later
shown to be erroneous, if rights have vested or there has been a
substantial change in the status of the parties since the
previous ruling.8
In this case, there has been a substantial change in
the parties’ circumstances since the entry of the trial court’s
temporary order and the entry of this Court’s order denying
C.M.’s petition for a writ of prohibition.
There was
substantial evidence presented to the trial court indicating
that A.H. had adjusted well to being in the custody of R.C.H.,
and that his behavior had improved during that time period.
Based upon this improvement, the trial court ultimately
concluded that R.C.H. should be granted sole custody of A.H.
Accordingly, we decline to depart from the law-of-the-case
doctrine under these facts.
jurisdiction and where the party aggrieved has no remedy by appeal. This
Court does not hesitate to issue necessary writs, particularly to protect the
well-being of children” [emphasis original][emphasis added][citations
omitted]).
7
After this Court denied C.M.’s petition for a writ of prohibition, she did
not seek discretionary review from the Supreme Court.
8
See Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539,
543 (1956)(stating that an exception to the law-of-the-case doctrine is
possible “especially where no rights have accrued or become vested and no
substantial change has been made in the status of the parties by reason of
the former decision”).
-10-
Based on the foregoing reasons, the order of the
Campbell Circuit Court is affirmed.
VANMETER, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David E. Davidson
Covington, Kentucky
James W. Morgan, Jr.
Newport, Kentucky
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