Anderson v. Johnson, Ky COA, Court’s Obligation to Make Findings Regarding Motion to Modify Timesharing

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Anderson v. Johnson, 2009-CA-001261-ME

Published:   Affirming

County: Franklin

Mother filed a Motion to Modify Timesharing based on her intended relocation.  FC denied Mother’s motion but did not provide Findings of Fact.  Mother directly appealed that Order.  Father argued on appeal that Findings of Fact were not required on a post-decree motion to modify visitation.  CA agreed, but elaborated:

We draw from these cases … these three rules: (1) CR 52.01 does not require a trial court to make findings on post-decree motions whether they are granted or denied; (2) when a post-decree motion is granted, case law rather than CR 52.01 does require findings of fact and conclusions of law sufficient to address the standard contained in the statute pursuant to which the motion was brought; (3) when a post-decree motion is denied, neither CR 52.01 nor case law requires findings of fact or conclusions of law because implicit in the denial is the finding that the movant failed to produce sufficient proof to require an affirmative finding of the facts on which he relied. 

We emphasize that [caselaw does] not leave the unsuccessful post-decree movant without recourse.

We note first that [caselaw] does not deprive any party of the remedial provisions of CR 52. That is, even though CR 52.01 does not require findings on motions, nothing prevents a party from eliciting the trial court’s discretion to enter findings by bringing a motion pursuant to CR 52.02. After all, Kentucky appellate courts continue to require the unsuccessful respondent to a post-decree motion to preserve error by complying with CR 52.04.

Next, and more importantly, nothing prohibits an unsuccessful postdecree movant from appealing the denial of the motion … if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case.

In so finding, however, we do not intend to encourage minimalism in the drafting of orders. …Better practice [would be] for the trial court to make findings of fact...

CA also supported previous application to Supreme Court by another panel of CA to review and revise CR 52.01:

Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make findings of fact when ruling on a motion of any kind except as provided in CR 41.02 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review.


Dissent filed by Chief Judge Taylor, maintaining that Findings are mandatory under CR 52.01 and failure to make them is reversible error; no CR 52.04 motion required to preserve the claim of error. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

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