GASKINS (CHARLES FRANKLIN) VS. GASKINS (NOW ETHINGTON) (MARSHA LEE)
Annotate this Case
Download PDF
RENDERED: OCTOBER 16, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000059-ME
CHARLES FRANKLIN GASKINS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE O. REED RHORER , JUDGE
ACTION NO. 04-CI-00332
MARSHA LEE GASKINS
(NOW ETHINGTON)
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: KELLER AND NICKELL, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Charles Franklin Gaskins appeals from the
December 4, 2008, order of the Franklin Circuit Court. That order denied Charles’
motion for a change in primary residential custodian of his and Marsha Lee
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Gaskins’ minor children. Because we hold that the trial court applied the incorrect
legal standard in its consideration of Charles’ motion, we reverse and remand.
The parties were married on May 26, 2000. Two children were born
of the marriage. On August 19, 2004, a final order was entered, by the Franklin
Circuit Court, dissolving the marriage between the parties. Pursuant to an
agreement, the parties were to share joint custody of the children, with Marsha
being the primary residential custodian. On September 16, 2008, Charles filed a
motion for a change in custody, seeking to make himself the children’s primary
residential custodian. On December 8, 2008, the trial court entered an order
finding that modification was not necessary and effectively denying Charles’
motion.2 This appeal followed.
In a recent opinion, the Kentucky Supreme Court held that a motion
seeking to change the primary residential parent was in reality a motion to modify
visitation/timesharing and not a motion to modify custody. Pennington v.
Marcum, 266 S.W.3d 759 (Ky. 2008). Motions to modify visitation/timesharing
are brought under KRS 403.320(3), which permits modification when it “would
serve the best interests of the child.”
On appeal, Charles argues that the trial court abused its discretion and
that its findings were clearly contrary to the weight of the evidence. However, it is
unnecessary for us to address the merits of Charles’ argument. Our review of the
December 8, 2008 order, from which this appeal was taken, reveals that the trial
2
More detailed findings of fact and conclusions of law were entered by the trial court on January
9, 2009.
-2-
court applied the improper custody modification standard of KRS 403.340, instead
of the appropriate visitation/timesharing modification standard of KRS 403.320(3).
As Charles’ notice of appeal was filed on January 7, 2009, the circuit court was
thereafter without jurisdiction and the January 9, 2009, findings of fact and
conclusions of law are a nullity. See, e.g., Hoy v. Newburg Homes, Inc., 325
S.W.2d 301 (Ky. 1959).
Accordingly, the December 8, 2008, order of the Franklin Circuit
Court is reversed and remanded with instructions to reconsider the evidence and
apply the appropriate visitation/timesharing modification standard of KRS 403.320
and to enter new findings of fact, conclusions of law, and an appropriate order.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jean Kelley Cunningham
Shelbyville, Kentucky
Marsha Lee Ethington
Frankfort, Kentucky
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.