Holloway v. Holloway

VANMETER

BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES. VANMETER, JUDGE: Jonathan Holloway appeals from the Jefferson Circuit Court order that set forth a parenting schedule governing visitation with his three children. For the reasons set forth below, we reverse the circuit court's order and remand this case for further proceedings consistent with this opinion.

Subsequent to their divorce, Jonathan and Lisa Holloway entered into an agreement that provided for joint custody of their three children and included a temporary parenting schedule. This schedule was subsequently modified by the parties and on February 20, 2012, the court accepted the revised schedule and issued an agreed order.

Pursuant to that agreed order, Jonathan and Lisa shared joint custody; Lisa was to have parenting time each Monday from the beginning of school until each Wednesday at the beginning of school. In turn, Jonathan was to have parenting time each Wednesday from the end of school until each Friday at the end of school. The children alternated weekends from Friday after school until Sunday mornings at 9:30 a.m. with respect to the older children, and 1:00 p.m. on Sunday with respect to the youngest child. The order reserved the issue of holiday visitation for further mediation.

Six months later, Lisa requested a hearing to resolve certain issues with the parenting schedule set forth in the agreed order, and asked the court to adopt her proposed holiday schedule. Lisa asserted the existing schedule was unworkable and Jonathan was encroaching on her visitation time. Jonathan responded and also submitted a proposed holiday schedule.

The court conducted a hearing to address Lisa's concerns and thereafter ordered a "week on/week off" parenting schedule so as to give each parent a full week of visitation, with an exchange of the youngest child to take place on Sunday evenings at six. The court adopted Lisa's proposed holiday visitation schedule, noting its compatibility with the modified schedule. Both parties retained joint custody.

Jonathan then filed a motion to alter, amend, or vacate the order pursuant to CR 59, which the circuit court denied. Specifically, the circuit court denied Jonathan's request for specific findings of fact regarding the children's best interests. This appeal followed.

On appeal, Jonathan avers that the circuit court's failure to set forth specific findings of fact and conclusions of law necessitates reversal. We agree. When an action is tried without a jury, CR 52.01 requires the circuit court to "find the facts specifically and state separately its conclusions of law thereon[.]" These findings are critical to appellate review, because "the question before this court is not whether we would have decided [the case] differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010). Thus,

[t]o review the judge's decision on appeal, it is important to know what facts the judge relied on in order to determine whether he has made a mistake of fact, or to even determine if he is right at law, but for the wrong facts. If a judge must choose between facts, it is clearly relevant which facts supported his opinion.

In this case, the parties do not dispute the applicability of the "best interests of the child" standard. See KRS 403.320(3). A decision involving the best interests of the child requires written findings of fact and conclusions of law. Anderson, 350 S.W.3d at 455-59 (the court's conclusion that its decision was in the best interests of the child, without specific factual findings, was insufficient to meet the requirements of CR 52.01); Keifer v. Keifer, 354 S.W.3d 123, 126-27 (Ky. 2011) (court's findings of fact regarding a child's best interests must be written and oral findings are insufficient).

Here, the circuit court's order failed to set forth specific findings of fact and does not indicate which legal standard it applied. We could conceive that the nature of the schedule, and the children's inability to spend equal time with both parents, might be contrary to the children's best interests. However, absent specific findings of fact and conclusions of law, we could just as easily conclude that the court impermissibly modified visitation to prevent encroaching. See Kulas v. Kulas, 898 S.W.2d 529, 531 (Ky. App. 1995) (modification is not permitted to prevent father from "piggy backing" on mother's visitation time). Absent these essential findings, we are unable to determine if the children's best interests were the impetus for the court's decision. Therefore, we must reverse the circuit court's order and remand this case in order for the court to provide us with specific findings of fact and separate conclusions of law concerning the children's best interests.

For the reasons set forth above, the decision of the circuit court is reversed and this case is remanded for further proceedings consistent with this opinion.

ALL CONCUR. BRIEFS FOR APPELLANT: Sammy Deeb
Louisville, Kentucky
BRIEF FOR APPELLEE: Delores Pregliasco
Louisville, Kentucky