Carpenter-Moore v. Carpenter, Ky COA, Relocation, Law in Effect at Time of Decision

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Carpenter-Moore v. Carpenter, et al, 2010-CA-000164-ME

Published:  Affirming

County:  Kenton

 

    Mother appealed from FC’s denial of her motion to relocate with the parties’ three minor children.

 

    Divorce proceedings were initiated in June, 2004.  In December, 2004 FC entered an order that the parties would share joint legal custody of their children.  A bifurcated divorce decree entered in August, 2005 dissolved the marriage but reserved all other issues, including custody, with all temporary orders to remain in effect pending resolution.  An agreed order entered March 21, 2007 stated that the parties would have joint legal custody, with mother the primary residential custodian.

 

    On November 1, 2007 mother filed a motion to relocate to Virginia with the children.  Father’s counsel stated his objection at the hearing on November 13, 2007.  The court set a hearing date for February 7, 2008 and appointed a guardian ad litem.

 

    Father filed a motion on January 30, 2008 for review of parenting time which was set to be heard the same date as the hearing on relocation.  The GAL filed her report on February 4, 2008 stating that she did not believe the relocation was in the best interest of the children.  On February 6, 2008 mother filed a motion for court to summarily grant her relocation because father had not complied with Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) and KRS 403.340 and 403.350.  This was also set to be heard on February 7, 2008.

 

    On February 7, 2008, father filed a motion for a change of custody with two affidavits.  At the hearing, the judge requested briefs on the legal issues and gave mother an opportunity to file a response to father’s motion for change of custody.

 

    Each party filed a memorandum and on June 2, 2008, the court held an unrecorded hearing in chambers.  On August 11, 2008, the judge issued findings of fact and conclusions of law that father had submitted sufficient evidence of emotional harm to the children, requiring a full evidentiary hearing under KRS 403.340(2).

 

    On October 23, 2008, the Kentucky Supreme Court rendered Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) which specifically addressed relocation issues and changing motion procedures previously mandated by Fenwick.

 

    Before the hearing on October 31, 2008 father filed a motion to plead in the alternative for modification of visitation/timesharing to name him the residential parent, citing Pennington.  The FC decided Pennington applied and that the best interests of the child standard applied to motions for relocation.  On November 13, 2008, mother filed a motion for sole custody with no affidavits.

 

    On January 6, 2009, the FC heard the remainder of the evidence and granted father’s oral motion to deny mother’s change of custody motion.  Both parties filed position statements at the request of the court.

 

    On March 30, 2009, FC issued an order denying mother’s motion to relocate and reserved all issues for future rulings.

 

    Mother filed an appeal of the March 30 decision which was dismissed as premature because of unresolved reserved issues.  The FC then entered an amended opinion and order on December 22, 2009, denying all other motions, maintaining the status quo, making no custody changes and stating the order was final and appealable.  Mother appealed from the March 30, 2009 and December 22, 2008 orders.

 

    CA did not find the three month period an unreasonable time in which to file father’s motion and cited Fowler v. Sowders, 151 S.W.3d 357 (Ky. App. 2004) which held that allegations of serious physical or emotional endangerment to a child were not required to support a  motion for a change of custody.

 

    The CA found no error in failing to follow Fenwick’s procedural mandates because Fenwick is not applicable to this case.

 

    Mother further argued that FC retroactively applied Pennington and erred by the retroactive application of new law to substantive rights.  CA disagreed distinguishing between statutes and regulations and Pennington, a judicial decision.  In cases involving new judicial precedent, the CA said “a court is to apply the law in effect at the time it renders its decision.”  Commonwealth v. Alexander, 5 S.W.3d 104, 106 (Ky. 1999).  Pennington did not affect mother’s substantive rights; it merely clarified statutory procedure for challenging a motion for relocation.  Furthermore, no decision or event had occurred to which Pennington could have been applied retroactively.  CA found that FC did not err in determining that Pennington was applicable.

 

    Mother argued that the FC did not find give appropriate weight to GAL’s report.  CA did not find that FC clearly erred when it found relocation was not in the best interest of the children.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

 

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