REBECCA ANN BROCKMAN (FORMERLY CRAIG) v. CLARENCE KEVIN CRAIG
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RENDERED:
JULY 14, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001347-ME
REBECCA ANN BROCKMAN (FORMERLY CRAIG)
APPELLANT
APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 01-CI-00184
v.
CLARENCE KEVIN CRAIG
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.2
McANULTY1 AND SCHRODER, JUDGES; ROSENBLUM, SENIOR
McANULTY, JUDGE:
This case is before this Court on the motion
of Rebecca Brockman (formerly Craig) (hereinafter Rebecca) in
the Carroll Circuit Court to be allowed to move to Indiana with
her minor child.
Rebecca shares joint custody of the child with
her ex-husband, Clarence Kevin Craig (hereinafter Kevin).
She
1
This opinion was completed and concurred in prior to Judge William E.
McAnulty, Jr.’s resignation effective July 5, 2006, to accept appointment to
the Kentucky Supreme Court. Release of the opinion was delayed by
administrative handling.
2
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
argues that the standard for modification of visitation, rather
than modification of custody, should have been used to determine
the merits of the motion.
She further believes that the trial
court erred in determining that she was not the primary
residential custodian, and that neither party was designated as
such, since she was in reality the primary caretaker of their
child.
She believes that the court should have held a hearing
on her motion.
We have reviewed the record, and we affirm.
The marriage of Rebecca and Kevin Craig was dissolved
in April 2004.
At that time, the parties entered into a
property settlement agreement, subsequently held to be binding
by the Carroll Circuit Court, which stated with respect to child
custody:
Both parties are the fit and proper persons
to have the care, custody and control of the
parties’ minor child, Clarence Case Craig,
and shall share joint custody of their son.
The parties shall confer and attempt to
agree upon all major decisions affecting
their son, including but not limited to, his
education, religion, and health care.
The separation agreement further set forth a “parenting
schedule” for their son, in which Rebecca had the child
approximately three days during the workweek to Kevin’s two
days, and weekends with their son were alternated.
It stated
each parent was entitled to an equal amount of vacation time per
calendar year, and allotted to each half of holidays.
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Kevin was
ordered to pay to Rebecca child support.
Kevin was responsible
for obtaining health insurance for the child, but health care
expenses were to be divided by the parties.
Tax deductions and
exemptions were to be alternated by the parties.
The controversy in this case arose less than a year
after the property settlement agreement was finalized.
On March
14, 2005, Kevin filed a “Motion to Prevent Petitioner [Rebecca]
from Removing the Parties’ Child from Carroll County.”
Kevin
stated that he had received a letter that day from Rebecca in
which she expressed her intention to move to Vevay, Indiana.
Kevin attached an affidavit and the letter received from
Rebecca, dated March 4, 2005.
In the letter, she stated that
they needed to discuss how to exchange the child for visitation,
and asserted that she wanted to enroll the child in school in
Rising Sun, Indiana, where she would be working as a substitute
teacher.
Kevin objected to removal of the child from school in
Carroll County and to the proposed relocation to Indiana, or
anywhere outside of Carroll County.
He alleged that the
proposed move would violate the terms of the joint custody
agreement.
Following Kevin’s motion, Rebecca filed a “Motion to
Relocate and to Modify the Parenting Schedule.”
Rebecca
attached an affidavit in support which stated that she had
remarried and would be moving into her husband’s house in Vevay,
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Indiana.
She reported that his house was located approximately
45 minutes from Carroll County.
She stated that her two new
jobs in Indiana would provide income approximately three times
her previous income.
She stated that she had been volunteering
at their child’s school in Carroll County, but would be able to
be paid as a substitute teacher in Indiana while working towards
her teaching certificate.
as a real estate agent.
In addition, she had obtained a job
Lastly, Rebecca asserted that she had
“always been the primary caretaker” of their son, that their
agreement presently gave her more parenting time, and that
allowing the child to relocate with her was in his best interest
since he would attend the same school where she worked.
She
proposed that Kevin be given more parenting time in the summer
to make up for time lost during the school week when the child
resided with her.
Kevin responded that her motion to relocate was in
effect a motion to modify custody in that it sought a change in
the parties’ joint custody arrangement.
He objected to
Rebecca’s request for a hearing on her motion on the basis that
she had not alleged pursuant to KRS 403.340(2) that there were
sufficient grounds to modify custody within two years of the
custody decree.
KRS 403.340(2) provides:
No motion to modify a custody decree shall
be made earlier than two (2) years after its
date, unless the court permits it to be made
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on the basis of affidavits that there is
reason to believe that:
(a) The child's present environment may
endanger seriously his physical, mental,
moral, or emotional health; or
(b) The custodian appointed under the prior
decree has placed the child with a de facto
custodian.
Kevin noted that it had been about eight months since the
approval of the joint custody arrangement by the court, and a
single affidavit was filed with the motion.
In memoranda, the parties argued over the application
to these circumstances of Fenwick v. Fenwick, 114 S.W.3d 767
(Ky. 2003), which held that a parent with primary residential
custody in a joint custody arrangement had a right to relocate
with the child without court approval despite the objection of
the other parent.
Fenwick declared that the objecting parent
could only prevent relocation by being named primary residential
custodian, which would require modification of custody under the
standard of KRS 403.340(2).
Id. at 785-786, & n. 84.
Rebecca
argued that she was the primary custodian, so that modification
of custody was not needed, but a change in the visitation
schedule was required using a best interests of the child
standard.
Kevin asserted that Rebecca was not the child’s
“residential custodian,” as neither party was so designated in
their parenting agreement.
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The case was assigned to a Domestic Relations
Commissioner, who found:
There was no designation of either party as
the child’s ‘primary residential custodian’
in the parties’ joint custody agreement, and
in this case the omission of that
designation was by design of the parties’
attorneys, and not by omission, as counsel
for the parties struggled in this Court to
achieve a settlement of the custody and
parenting of the parties’ son so that the
parties would have shared parenting and
could settle this issue without further
hearing by the Court. The parties and their
counsel attempted to reach a true joint
custody shared parenting arrangement[.]
The Commissioner concluded there was no right to relocate, as in
Fenwick, on the basis that no primary residential custodian was
designated in the case at bar.
The Commissioner stated that in
order to relocate and alter the joint custody agreement, Rebecca
would be required to meet the burden of proving the requirements
of the statute on modification of custody.
Based on the
finding, the Commissioner recommended granting Kevin’s motion
and maintaining the status quo, including continued enrollment
in Carroll County schools.
The parties filed exceptions to the report of the
Commissioner.
A second report was filed by the Commissioner on
May 25, 2005, which again stated that there was no primary
guardian designated in the parties’ agreement.
The Commissioner
stated that the fact that the mother spent more hours with the
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child during the week did not confer the designation of primary
custodian on her.
As for Rebecca’s argument that she was only
seeking to change the amount of parenting time, the Commissioner
found that her motion not only affected parenting schedules, but
proposed to change the child’s school and substantially reduce
the amount of time the father spent with the child.
Thus, it
must be treated as a motion to modify custody.
The Commissioner then applied KRS 403.340 and
considered Rebecca’s affidavits in support of the motion.
He
found that she had not met the standard of showing serious
endangerment to the child.
Instead, her allegations amounted to
arguments that the move was in the best interest of the child.
The Commissioner thus concluded there was no basis for a hearing
on the motion, and recommended that the motion for modification
be denied.
That same day, the Carroll Circuit Court ordered
that the motion for modification of custody did not meet the
requirements for the court to hold a hearing under KRS 403.340,
and denied the motion.
Rebecca appeals this order.
In Fenwick, the Supreme Court reported that: “in joint
custody arrangements, the parties will often agree, or the court
will designate, that one of the parents will act as the ‘primary
residential custodian.’”
Fenwick, 115 S.W.3d at 778-779.
Even
so, it is possible to proceed with joint custody with no primary
residential custodian designated.
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The status of primary
residential custodian must be designated by the court or by
agreement of the parties, or it has no basis in fact in a
custody arrangement.
As stated by the Supreme Court in Fenwick,
it does not arise by statute, but is created by the court or the
parties to confer particular responsibilities on one of the
parents.
Id. at 779.
It is thus not the same as determining
who had been the primary caretaker before separation.
Nor is it
settled by asking who has the child for more hours after
dissolution.
Rebecca cannot show, therefore, that she was the
primary residential custodian, since the plain language of the
separation agreement as to child custody does not designate a
primary custodian.
In Crossfield v. Crossfield, 155 S.W.3d 743 (Ky.
2005), this Court considered which standard should be used,
modification of custody or modification of visitation, when the
issue is a change in the primary custodian.
We agree with its
conclusion that a “change in the primary residential custodian
amounts to a modification of the joint custody arrangement.”
Id. at 746.
Rebecca maintains that she was only seeking to modify
parenting time, and so the trial court erred in requiring her to
meet the standard for modification of custody.
Rebecca further
argues that Crossfield is distinguishable from the case at bar
on its facts.
The father in Crossfield had been named primary
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custodian, and the mother was seeking to become primary
custodian and reverse their time-sharing arrangement.
Rebecca
argues this case is completely different in that she had the
majority of parenting time before the motion to relocate, and
would continue to have the majority of time, but her time with
the child would increase.
Apart from the fact that this
downplays the changes she seeks, we find that the factual
distinction makes no difference in directing the applicable law
in this instance.
The basis for the ruling in Crossfield was
not the amount of time spent, but what the effect would be of
changing the assignment of primary residential custodian status.
See Crossfield, 155 S.W.3d at 746. (“Under the new arrangement,
Keni would assume the primary role in the minor day-to-day
decisions concerning the children, would be primarily
responsible for providing a residence for the children, and
would assume their normal routine care and control.”)
Thus, we
conclude the trial court correctly determined that the standard
for modification of custody applied.
With no primary residential custodian designated,
Rebecca had to obtain a modification of custody in order to
relocate with the child.
Because it was less than two years
since the custody agreement was made it was necessary under KRS
403.340(2)(a) to show a reason to believe the child’s present
environment seriously endangered him in order to justify a
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modification.
Rebecca did not allege or show this.
Her
affidavit stated only that allowing their child to relocate with
her was “in his best interest.”
A second affidavit she later
filed, from her father, observed only that the child was very
close to his mother and would “suffer serious emotional harm” if
he did not primarily reside with her.
The Commissioner
determined that neither of the affidavits came near to meeting
the standard in the statute.
We agree that there was no basis
for modification of custody within two years under KRS
403.340(2)(a).
Rebecca further argues that due process required that
she be granted a hearing on her motion.
We disagree.
The
statute provides threshold requirements for modifying custody
which must be alleged by way of affidavits.
The statute is
clear that it gives discretion to the court to “permit” the
motion based on the affidavits.
Since the statute affords the
trial court discretion not to permit the motion, it follows that
the court may deny a hearing on the motion.
Therefore, we find
no error in the court’s failure to hold a hearing.
For the foregoing reasons, we affirm the order of the
court denying a hearing on the motion to modify.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Allen McKee Dodd
Dodd & Dodd Attorneys, PLLC
Louisville, Kentucky
Ruth H. Baxter
Crawford & Baxter, P.S.C.
Carrollton, Kentucky
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