Date: 10-28-2003

Case Style: Fenwick v. Fenwick

Case Number: 1999-SC-1055-DG

Judge: Keller

Court: Supreme Court of the Commonwealth of Kentucky

Plaintiff's Attorney:

Dwight Preston of Lewis and Preston, Elizabethtown, Kentucky for Stuart Fenwick

James L. Theiss, LaGrange, Kentucky for Benjamin F. Huck, Jr.

Defendant's Attorney:

Regina Rapier Beckman of Fulton, Hubbard and Hubbard, Bardstown, Kentucky and Jason P. Floyd of Fulton, Hubbard and Hubbard, Bardstown, Kentucky for Susan Finwick

Robert S . Silverthorn, Jr., Louisville, Kentucky for Jennifer L. Huck

Description:

In each of the present appeals, a primary residential custodian in a joint custody arrangement seeks to relocate with the parties' children over the other parent's objection . Our resolution of the issues presented requires us to determine both : (1) whether a primary residential custodian's desire to relocate requires modification of the previous joint custody award ; and (2) whether the relocation, standing alone, permits a trial court to modify the joint custody award by changing the primary residential custodian designation . More fundamentally, we must determine the circumstances under which a trial court may modify an award of joint custody, and, in so doing, resolve lingering questions as to the proper standard for modification in joint custody cases.

In Fenwick v. Fenwick, 1999-SC-1055-DG, the primary residential custodian, Susan Fenwick, wishes to relocate thirty-five (35) miles to a nearby county. The trial court, applying the best interest standard, denied Susan Fenwick's relocation request, and held that, if she chose to relocate, it would modify the joint custody award by designating Phillip Fenwick as primary residential custodian . The Court of Appeals concluded that Susan Fenwick's proposed relocation did not require modification of the joint custody award and, moreover, held that the trial court had no authority to reconsider the joint custody award because there was insufficient threshold evidence of bad faith or an inability to cooperate. Accordingly, it reversed the trial court and permitted Susan Fenwick to relocate with the children . In Huck v. Huck, 2000-SC- 0697-DG, the primary residential custodian, Jennifer Huck, wishes to relocate to an adjoining state. The trial court refused her request because its original order prohibited her from moving the children outside the state without the approval of either her exhusband or the court, and the court denied its approval after finding that she had failed to advance sufficient and compelling reasons for the relocation . The Court of Appeals held that the trial court could prohibit the primary residential custodian from relocating with the children because the prospect of an out-of-state move may qualify as a sufficient change in circumstances to warrant modification of custody under KRS 403.340, the general modification statute .

Was a failure to show lack of cooperation by the parents in Fenwick v. Fenwick a sufficient basis to deny custody modification? Was the proposed relocation out-of-state in Huck v. Huck a circumstance that would justify custody modification under KRS 403.340? Because we hold that modification of joint custody must meet the requirements of KRS 403.340 and that the primary residential custodian's relocation, by itself, is insufficient to require modification of a joint custody award, we hold that modification of the joint custody award was neither required nor permitted in either case. Accordingly, we hold that the primary residential custodians may relocate as they propose and we therefore affirm the Court of Appeals in Fenwick v. Fenwick and reverse the Court of Appeals in Huck v. Huck.

II . BACKGROUND

A. FENWICK v. FENWICK

Susan and Phillip Fenwick were married in 1986. Their marriage produced two daughters, Stephanie and Paige . The Fenwicks lived together as a family until Susan and Phillip separated in February 1997. Their marriage was dissolved in May 1997; however, at that time, the trial court reserved for future adjudication child custody and other issues.

In an orders entered June 27, 1997, the trial court awarded the parties temporary joint custody of their two children, designated Susan Fenwick as the primary residential custodian'2 and established a time-sharing3 schedule that set forth when Phillip Fenwick would have the children . Under the court's time-sharing order, Phillip spends time with his daughters daily during the week from 3:00 p .m. to 6:00 p .m. In addition, the children stay with him each Tuesday afternoon after work through 6 :00 p.m . on Wednesday as well as every other weekend . Under this time-sharing arrangement, the children spend almost equal time with both parents .

At Phillip Fenwick's request, the marital residence was sold, and Susan Fenwick was thus required to seek a new residence for herself and the children . As a result, she filed a motion requesting the court's approval to relocate with the children to a three bedroom home owned by her brother in Jefferson County, a distance of thirty-five (35) miles from her present residence.

Susan Fenwick is employed by Louisville Gas & Electric, and she commutes from Bardstown to Louisville each day. A move to Jefferson County, she asserts, would eliminate her daily commute and confer additional benefits upon her and the children . She states that relocation to Jefferson County will allow her to be closer to her place of employment and thereby give her more time to spend with Stephanie and Paige. Moreover, she suggests that, after relocating to Louisville, she will be in a better position to respond promptly to any emergency needs her daughters may have. She also points out that after the move she and the children will continue to live close to family because her brother resides with his family in a home nearby and her brother's wife, along with his daughter, will help care for the children .

Phillip Fenwick objected to the motion, arguing that relocation is contrary to the children's best interests . He maintained that the established time-sharing schedule better serves the children's needs because: (1) the schedule allows the children to see, on a regular basis, him and other people with whom the children are close, and (2) Jefferson County is a crime-ridden, traffic-jammed, and pollution-filled area, which is unsafe for raising young children .

In an interlocutory order entered August 14, 1997, the trial court, applying the best interest standard, found "that moving the children from an area where they have significant interrelationships with family members and adjustment to the community would serve to exacerbate the ill effects of this divorce" and therefore overruled Susan Fenwick's motion to relocate. Phillip asked the trial court to designate him as primary residential custodian if Susan insisted upon relocating to Jefferson County, and the trial court's order provided Susan with that alternative :

. . . Susan's motion to relocate the children is hereby overruled . Susan, however, is granted the option to relinquish her role as primary caregiver to Phillip and propose to the court a new schedule of time sharing should this move to Jefferson County be of such significance to so warrant a change.

By an order entered December 8, 1997,4 the trial court made final and appealable its prior rulings that had awarded the parties joint custody, designated Susan Fenwick as the primary residential custodian, and denied Susan Fenwick's motion to relocate to Jefferson County with the parties' children . In its order, the trial court distinguished Wilson v. Messinger,S as applicable only to sole custody arrangements . The court also reiterated that the best interest of the children would not be served by the children's relocation with Susan from Nelson County to Jefferson County because "Stephanie (age 6) and Paige (age 3) have resided in Nelson County since birth[,) and "[thheir grandparents reside in Nelson County as do most of their close relatives."

Susan Fenwick successfully appealed the trial court's ruling that, in effect, had forced her to choose between her proposed move and retaining her status as primary residential custodian . In reversing the trial court's decision, the Court of Appeals reasoned that the evidence was insufficient to find the necessary bad faith or inability to cooperate required by Mennemeyer v. Mennemeyer,6 and thus held that the trial court lacked the authority to dictate a custody modification triggered solely by Susan Fenwick's move to Louisville . Phillip Fenwick challenges that decision in this Court. B. HUCK v. HUCK

Jennifer L . Huck and Benjamin F . Huck, Jr. were married on January 10, 1987. Two daughters, Nicole and Jessica, were born of the marriage . The parties separated in 1993, and Jennifer Huck filed a petition for dissolution of the marriage in the Oldham Circuit Court on April 27, 1995. On June 5, 1995 an agreed order was entered awarding Jennifer temporary custody of the children, "subject to reasonable visitation by [Benjamin Huck] ." The next year, on March 14, 1996, the trial court dissolved the parties' marriage but reserved its decision as to permanent custody and other issues for later consideration.

In an interlocutory order,? entered December 18, 1997, the trial court awarded the parties joint custody of the children, designated Jennifer Huck as primary residential custodian, and provided, "[Jennifer Huck] is to determine the residency of the children and their education." The order further provided, however, that the children's residency could not be changed from Kentucky absent the parties' agreement or the court's approval:

No . 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 .

Benjamin Huck's parents owned the parties' marital residence, and Jennifer continued to reside there with the children until Benjamin's parents required them to move. They then moved to Jennifer's parents' residence, which was also in Oldham County. Jennifer's father, however, had recently retired, and her parents were in the process of moving to Collegedale, Tennessee.

For a variety of reasons - including (1) the fact that Jennifer Huck and her children could live rent-free in a house that Jennifer's parents had purchased for her in Collegedale, (2) Jennifer's desire to have her children instructed in a Seventh Day Adventist school located in Collegedale, 9 (3) improved employment opportunities, 10 and (4) the support of her family - Jennifer wished to move to Collegedale with the children and filed a motion with the trial court on June 1, 199811 for leave to do so. In her motion, she offered to share the transportation expenses for the children to visit with Benjamin in Oldham County and to amend the present time-sharing schedule so that the children would spend additional time with their father during their visits with him.

Jennifer Huck's relocation motion was noticed for a hearing on June 12, 1998, but, due to the trial judge's illness, the hearing was postponed until September 16, 1998. However, on July 15, 1998, Jennifer filed a notice to advise the trial court that the children's school in Tennessee was to begin on August 11, 1998 . The notice stated that it "supplements the Notice-Motion-Order filed on her behalf [on] May 29, 1998, in which the Court was advised that [she] would be moving from Oldham County to Chattanooga[.]"12 Thus, Jennifer contends that both the trial court and Benjamin became aware that she and the children would be moving to Collegedale in time for the children to begin attending school on August 11, 1998.

Following Jennifer's arrival in Tennessee with the children, Benjamin filed a motion to hold Jennifer in contempt for violating the December 1997 order by removing the children from Kentucky without his agreement or the trial court's approval . After a show-cause hearing held on August 28 and September 2, 1998, the trial court found that Jennifer had moved "not as a result of a job reassignment, a remarriage and transfer, or other factors that were beyond [her] control[.]" The trial court found Jennifer in contempt after determining "that [she] has not advanced sufficient compelling and necessary reasons for the relocation to the state of Tennessee" and that "there is no agreement by [Benjamin Huck] nor a Court Order in place allowing her to do so[.]" The court provided, however, that Jennifer could purge herself of contempt by returning the children to Oldham County and enrolling them "in their previous schools not later than Monday, September 28, 1998." By order entered September 18, 1998, all prior interlocutory orders, including those relating to custody of the children and to Jennifer's motion to relocate, were made final and appealable.

Jennifer was unsuccessful in her appeal of the trial court's denial of her request to relocate. While appropriately acknowledging that the trial court could not prevent Jennifer from "seeking employment, marrying, or becoming involved in other circumstances which would result in a move from the Commonwealth of Kentucky," the Court of Appeals affirmed the trial court's ruling denying Jennifer's motion to relocate with the children. The Court of Appeals reasoned that the trial court continued to retain jurisdiction to review custody and, "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." Accordingly, the Court of Appeals held that the trial court did not err in restricting Jennifer's ability to move the children out of state and thus affirmed the trial court's ruling.13 Jennifer now appeals to this Court.

III. ANALYSIS

A. JOINT CUSTODY

The legislature has authorized Kentucky trial courts to make an award of joint custody "if it is in the best interest of the child ." 4 This Court has declined to enunciate a preference for joint custody, 15 but, instead, has held that 'joint custody must be accorded the same dignity as sole custody and trial courts must determine which form would serve the best interest of the child ."16 And, to ensure meaningful application of the best-interest standard in individual cases, the legislature has set forth numerous factors for a trial court to consider in its determination of what type of custody arrangement will best serve the child's interests . 17 In addition to these statutory considerations, this Court has noted that the likelihood of future cooperation between the parents regarding decisions pertinent to raising the child is a relevant factor in determining whether to award joint custody. 18

Our statutes do not define "joint custody." Thus, the parties' custody agreement19 will often define it, or the trial court's decree will explain in detail what the court intends by its award of joint custody. As such, the parties' agreement or the court's decree might well require joint decision-making on all major issues, but equal decision-making power is not required for joint custody, and parties or trial courts are free to vest greater authority in one parent even under a joint custody arrangement. In fact, it is not unusual for the parties or the court20 to assign the authority for certain decisions solely to one party, e .-q ., one parent might be allocated the sole power to determine issues regarding education - as occurred in Jennifer and Benjamin Huck's case - and the other parent might have the final say on health care. 21 However, unlike the decision to award joint custody, a trial court's decisions regarding the allocation of decision-making authority between the parents cannot be based on the best interest of the child because the trial court may assign a major child-rearing decision solely to one party only if it finds, after a hearing, that the failure to assign the authority for a childrearing decision solely to one party will endanger the child's physical health or significantly impair the child's emotional development.22

Sometimes, astute, forward-thinking parents will recognize when drafting a jointcustody agreement that even parents with the best of intentions will, from time to time, reach an impasse regarding a shared decision regarding their child .23 Thus, it is not uncommon for parents to insert a "tie-breaker" provision in their agreement to resolve such differences of opinion . One type of tie-breaker is referred to as "final decisionmaking authority," where final authority as to a child-rearing decision is vested in one parent or a third-party in the event that the parents are unable to reach jointly an agreement as to the appropriate decision. 24 Thus, when the parties reach an impasse after making good faith efforts to resolve the matter,25 the parent or third party vested with final decision-making authority will make the decision, and judicial intervention is unnecessary.

Where the parties or the trial court have not defined joint custody and have thus left it open to interpretation by the court, Kentucky's appellate courts have generally defined the term as an arrangement in which both parents jointly participate in major 26 decision-making concerning their child . Major decisions include the child's education, 27 health care, and religious training .

Although joint custody consists of both decision-making authority and actual physical custody of the child,28 joint custody, in its essence, contemplates shared decision-making rather than delineating exactly equal physical time with each parent. 29 In other words, decision-making and actual physical custody are not coextensive . And thus, in a joint custody arrangement, unless otherwise agreed to by the parties or decreed by the court, 30 "both parents have equal rights and responsibilities for major decisions concerning their child including, but not limited to, education, health care, and religious training, and the parents will consult with each other on these major decisions ."31 Understandably, however, minor day-to-day decisions concerning the child will, as a matter of necessity, be made by the parent with whom the child is residing at the time.

In awarding joint custody, the court must determine, based on the child's best interest, how the parents will share physical custody of the child. And, we would again note that an award of joint custody does not require an equal division of time with each parent; 32 rather, it means that physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent under the circumstances . If the parents continue to reside in close proximity to each other postdissolution, meaningful time-sharing should not be a problem . However, if one or both parents relocate some distance from each other, e.g., 50 miles or more, 33 the distance itself complicates the arrangement, and the parties or the trial court, again focusing upon the child's best interest, will need to devise a time-sharing schedule - e.g ., one incorporating telephone or e-mail access, and longer periods of time-sharing - that will assure frequent, continuing, and meaningful contact with both parents to the greatest extent possible under the circumstances . We recognize that in most cases the frequency of physical time-sharing will necessarily decrease as the distance between the parents increases.

B. PRIMARY RESIDENTIAL CUSTODIAN

A child cannot simultaneously reside with both parents, and in most cases, the child will spend more time with one parent than the other - a fact that, in many cases, mirrors the family's situation prior to the parents' separation . Accordingly, 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."34 Although this term - like "joint custody" itself - has not been statutorily defined in Kentucky, it is generally employed by attorneys and courts alike to refer to the party with whom the child will primarily reside . In such situations, the other parent is awarded what is referred to as ,'visitation," "time-sharing," or "parenting time" with the child .35 However, even when joint custody involves essentially equal physical custody - as in Susan and Phillip Fenwick's case - one party may nevertheless be designated the primary residential custodian for other purposes. 36

While joint custodians, as previously stated, share major decision-making on all child-rearing decisions unless the parties or the court elect otherwise, designating a party as the primary residential custodian logically confers on that party: (1) the primary role in minor day-to-day decisions concerning the child; (2) the responsibility for providing a residence, i.e. , a "home base," for the child, and (3) the normal routine care and control of the child . Such designation may also carry with it additional legal significance, ec .., a dependency tax deduction,37 residency for school purposes, 38 and child support. 39 As such, a trial court must again consider the child's best interests in connection with its decision to designate one of the parties as the primary residential custodian.

C. MODIFICATION OF JOINT CUSTODY

Largely because of divergent decisions from Kentucky's appellate courts, the issue of when and under what circumstances a joint custody arrangement may be modified remains unsettled in Kentucky. The opportunity to address the issue was first presented to this Court in Carnes v. Carnes .40 In that case, the parties were granted joint custody of their children, the mother was granted "the actual physical custody of the children for the greater part of the time, with the children to live with her," and the father was granted "the right to have the children with him at reasonable times and for reasonable periods of time." Subsequently, the father successfully sought to modify joint custody and was awarded sole custody of the children. Although this Court, in upholding the trial court's modification of custody, recognized that the modification issue came within the purview of the general custody modification statute, KRS 403.340, 41 Carnes possesses scant, if any, precedential value as to the standard for modification of joint custody because the Court characterized the custody joint award in Carnes as being "[i]n actuality" an award of sole custody to the mother.42 Because of this characterization, Carnes has been virtually ignored in subsequent cases addressing the modification of joint custody issue.

With the ink barely dry on the Carnes decision, the Court of Appeals rendered Benassi v. Havens43 a month later and squarely addressed the issue of modification in the joint custody context. In Benassi, the Court held that when joint custodians "subsequently disagree,"44 "modification should be made anew under [KRS 403.270] as if there had been no prior custody determination . 1145 In the view of the Benassi Court, Kentucky's custody modification statutes, KRS 403 .340 and KRS 403 .350,46 are applicable only to modifications of sole custody, and the Court held that a modification of joint custody came within the purview of KRS 403.270 . The Court did not mention Carnes or cite to any authority in support of its holding ; rather, the Court proclaimed that "[a]s a practical matter, joint custody is no award at all when considering modification of the arrangement."47 Benassi was followed three years later by Erdman v. Clements,48 in which the Court of Appeals, citing Benassi , again held that, upon disagreement of the joint custodians, the trial court should conduct a de novo hearing to determine custody as if it had made no prior custody determination .

Next, in Chalupa v. Chalupa ,49 the Court of Appeals addressed modification of joint custody in the context of an appeal from an award of sole custody and a denial of joint custody. The Court stated that "[j]oint custody can be modified if a party is acting in bad faith or is uncooperative[,]" and that "[t]he trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent."50 Thus, Chalu a appeared to change the standard for modification of joint custody from one of simple disagreement by the parties to one requiring a finding by the trial court that one of the parties is acting in bad faith or being uncooperative .

Subsequent to the Court of Appeals's decisions in Benassi. Erdman , and Chalupa , this Court spoke to the modification issue in an appeal from a judgment granting joint custody. In Squires v. Sguires, 51 we primarily addressed the appropriate use of joint custody, but also spoke to the problem of uncooperative joint custodians. In so doing, we indicated approval of Chalupa's statement that "[j]oint custody can be modified if a party is acting in bad faith or is uncooperative[,]"52 and added that "[i]t should not be overlooked that to achieve such cooperation, the trial court may assist the parties by means of its contempt power and its power to modify custody in the event of a bad faith refusal of cooperation ."53 Notably, however, we rejected Benassi's description of an award of joint custody as "no award at all" by declaring that "joint custody must be accorded the same dignity as sole custody."54 We therefore recognized that an award of joint custody is indeed a custody award just the same as an award of sole custody because both are custody awards under the same statute - KRS 403 .270.

Then, the year after Squires, the Court of Appeals once again addressed the modification issue. In Mennemever v. Mennemeyer,55 the husband sought to modify joint custody because the wife, whom the parties had designated to have physical custody of the parties' child, intended to relocate with the child to another state for employment purposes . The trial court modified custody, but instead of awarding the husband sole custody as he requested, continued the joint custody arrangement, but modified it by transferring physical custody of the child from the wife to the husband . On appeal, however, the Court of Appeals, citing both Chalu a and S uires, reasoned that "the trial court may intervene to modify a previous joint custody award only if the court first finds that there has been an inability or bad faith refusal of one or both parties to cooperate ."56 And, because the husband failed even to allege an inability or bad faith refusal of the parties to cooperate," the Mennemever Court held, "that the trial court erred by modifying its joint custody award by changing the physical custody of the child from [wife] to [husband] ."57 Thus, with Mennemever, it appeared that the appellate courts had finally settled on the modification standard for a joint custody arrangement, i.e., first, a threshold finding of an inability or bad faith refusal of one or both parties to cooperate, 58 and then, and only then, evaluation of the need for modification in accordance with the best interest of the children upon consideration of the factors that are enumerated in KRS 403.270. 59

The issue's settlement appeared short lived, however. The following year, in Aton v. Aton ,60 the Court of Appeals, relying on Benassi and Erdman, ignored the threshold standard for modification only recently established by Chalupa , Squires and Mennemeyer and held that "any time the joint custodians come before the trial court, calling the joint custody arrangement into question, the court should review the custody status as if no custody determination had been made, in accordance with the best interests of the child ."61 But, then, in several cases rendered after Aton , etc .., Stinnett v. Stinnett, 62 Jacobs v. Edelstein ,63 Briggs v. Clemons ,64 and Stroud v. Stroud ,65 the Court of Appeals returned to Mennemeyer's requirement of a threshold showing as a precondition to modification .

However, after six years of faithful adherence to Mennemever, the Court of Appeals, sitting en banc in Scheer v. Zei_gler,66 "conclude[d] that the approach of Benassi to joint custody was flawed and that it led to the improper threshold requirement of Mennemever."67 In support of its conclusion, the Court appropriately recognized S uires's holding that joint custody is a form of custody:

When the Benassi court held that joint custody is not an award of custody at all, that KRS 403 .340 and KRS 403.350 do not apply to joint custody modifications, and that joint custody modification motions should be heard de novo in accordance with KRS 403.270, it ignored the reality that joint custody is, in fact, a form of custody. Not only has joint custody been awarded by courts as a form of custody for a number of years, but it has also been recognized and authorized by the General Assembly as a form of custody since 1980. . . . [T]he Kentucky Supreme Court's decision in Squires . . . recognized that "so long as KRS 403 .270(4) remains the law of Kentucky, joint custody must be accorded the same dignity as sole custody and trial courts must determine which form would serve the best interest of the child ." Therefore, we conclude that Benassi was wrong in not recognizing joint custody as a form of custody.68

Accordingly, the Scheer Court explicitly overruled Benassi and Mennemever and held that the standard utilized in connection with modifications in the sole custody context is equally applicable to modification of awards of joint custody:

Rather than continue the flawed premise of Benassi and the subsequent efforts of Mennemever and its progeny to correct it, we overrule Benassi and Mennemever. We hold that joint custody is an award of custody which is subject to the custody modification statutes set forth in KRS 403.340 and KRS 403.350 and that there is no threshold requirement for modifying joint custody other than such requirements as may be imposed by the statutes .69

Because, in Squires, this Court recognized that joint custody is on par with sole custody, we agree with Scheer's holding that joint custody is itself a custody award and thus any modification must come within the purview of KRS 403 .340 and .350. When the General Assembly amended KRS 403 .270 to authorize joint custody, the statutes that governed the modification of custody were already on the books, and, because the General Assembly took no steps to enact additional statutes governing modification of joint custody awards, the legislature must have intended those prior provisions to apply equally to joint custody. In addition, we would also observe that the 2001 General Assembly amended KRS 403.340 to expressly encompass joint custody modifications, 70 and this subsequent enactment further supports the conclusion that joint custody modification is to be governed by the custody modification statutes.71

To summarize, joint custody modification falls exclusively within the purview of KRS 403.340 and .350, and the previous judicially-created "gateways" to joint custody modification are inapplicable . Thus, joint custody is not subject to modification at the mere whim of a party or simply because the parties disagree as to a child-rearing decision . Nor is the lack of cooperation by one or both parties grounds for modification of joint custody unless it rises to the statutory level required for modification of custody under KRS 403 .340.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: For the foregoing reasons, we affirm the Court of Appeals in Fenwick v. Fenwick and, in Huck v. Huck, we reverse the Court of Appeals and remand the case to the Oldham Circuit Court for entry of an order permitting Jennifer Huck to relocate with her children. All concur.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Digested by Kent Morlan