Published: Reversing and Remanding
Suzanne Anderson appeals from a Court of Appeals opinion affirming the Franklin Circuit Family Court’s order denying her motion for a change in timesharing of the parties’ minor child to allow her to relocate with the child. She argues that the Family Court’s order cannot stand because no findings of fact were made. The Appellee, Joseph Johnson, asserts that no findings of fact are required on a motion pursuant to CR 52.01 because he only filed a motion, not an action, and that Appellant failed to preserve any issues for appeal.
The parties were joint custodians and shared time with the child equally until April, 2009, when Anderson filed a motion to modify the timesharing schedule so she could relocate to Paducah. After a hearing in May, 2009, the Family Court did not make specific findings of fact with separate conclusions of law, but found that relocation was not in the child’s best interest and denied the motion to modify timesharing. The Court of Appeals affirmed the Family Court, relying on Burnett v. Burnett, 516 S.W.2d 330 (Ky. 1974), and holding that findings of fact were not necessary when the court denied a motion.
The legal standard for a modification decision is whether the relocation is in the best interests of the child. In order to review a judge’s decision, it is necessary to know what facts were relied upon.
Timesharing set by the court on post-decree modification is final and appealable because it is a modification of an existing final order and because KRS 403.320(3) allows modification of a final order whenever it would serve the child’s best interests. A visitation order modifying a final order becomes the new final order and is subject to appeal.
A motion for modification is a vehicle for reopening and rehearing some part of a final order and asks for adjudication on the merits after a hearing. Family Courts must make findings of fact and conclusions of law and enter an appropriate judgment on modification motions.
The Supreme Court declined to follow Hollon v. Hollon, 623 S.W.2d 898 (Ky. 1981). Because it misstates what the statutes require and does not adequately address the effect of CR 52 in its entirety, Hollon is overruled.
When the court omits a finding essential to the judgment, CR 52.04 requires a litigant to make a written request or motion to include a fact completing a judgment. Although CR 52 embodies a burden on the court and the litigant, the court bears the broader burden because it has an express duty to make necessary findings of fact and conclusions of law. CR 52.01 creates a general duty for the Trial Court to find facts and CR 52.04 applies only after the court has complied with its general duty.
In the case at bar, the court’s order included no findings of fact to support the conclusion that the move would not be in the child’s best interests, a violation of CR 52.01. CR 52.04 is not involved here because the court made no findings, rather than good-faith but incomplete findings.
Prior decisions have indicated that Trial Courts do not need to make specific findings of fact and separate conclusions of law on modification motions. When a motion results in a hearing dealing with substantive matters, findings of fact are required before a conclusion of law can be made. These concerns are especially relevant because courts have continuing jurisdiction over children until majority or emancipation. To the extent those cases differ from the holdings in this opinion, they are overruled.
In domestic relations cases, post-divorce motions concerning visitation and timesharing modifications are “actions tried upon the facts without a jury,” which require specific findings of fact and separate conclusions of law, followed by an appropriate judgment. This case is remanded to the Franklin Circuit Family Court to make specific findings of fact and separate conclusions of law consistent with this opinion, followed by an appropriate judgment.