Crouch v. Crouch, 201 S.W.3d 463 (Ky. 2006)
Issue and Holding:
Whether order stating that the mother had been called to active military duty and that the parties agreed the child would reside with the father “until further orders of the court” is a temporary order or permanent modification of a joint custody order. The Court held that the order was only a temporary order.
When the parties divorced in 1996, the parties agreed, and the trial court ordered, that they share joint custody of their one minor child. The mother was granted physical custody. In 2003, the mother, a member of the Kentucky National Guard, was called to active duty and given 72 hours notice. The mother had to make quick decisions regarding custody. The parties agreed that the child would live with her father for the duration of the mother’s active duty, but return to the mother after her duty was complete. An agreed order was entered, drafted by the father’s attorney, which stated that the child would reside with the father “until further Orders of the Court.”
The mother was not deployed overseas, but was mobilized and sent to Fort Knox for one year. During this time, the mother visited her child on several occasions. In 2004, the mother contacted the father and told him that her active duty had been served, but that she had been accepted to a four month Officer Training School. The parties agreed that the child should stay with the father while the mother attended the training, as it would be less disruptive for the child to finish at out the school year in one place. The parties intended to transfer custody back to the mother during the summer.
After the mother completed her training in the summer, she contacted the father to arrange resuming custody of the child. The father refused to transfer custody and told the mother that she would need a court order to enforce their agreement.
The mother then petitioned the court to enforce the 1996 permanent custody order. The trial court conducted a hearing and found that it was in the best interests of the child to remain with her father. The trial court noted that the best interests of the child standard must prevail over the mere enforcement of a contract between parties.
The Court of Appeals found that the 2003 order was a temporary order and not a modification of the 1996 permanent custody order.
The Supreme Court granted discretionary review.
The Court found the 2003 custody order to be ambiguous. While the phrase “until further orders of the court” could be interpreted to denote a permanent order, it could also be interpreted to indicate that the court will transfer custody back to the mother upon completion of active duty. Ambiguity also exists because the order lacked any findings of fact or reference to the 1996 permanent custody order being modified. As such, the Court looked to and relied upon the intent of the trial court in entering the 2003 order for interpretation. The Court found that the trial court’s intent was to effectuate the intent of the parties, and that the parties’ intent was for the order to be temporary. Accordingly, the Court affirmed the Court of Appeals’ decision.
The Court briefly noted that their interpretation of the 2003 order is consistent with the new statute KRS 403.340(5). The new statute is not controlling in the instant case, but directly addresses the issue of custody when a parent is a member of the military and called to active duty.
Justice Scott dissented. Justice Roach joined.
Justice Scott argued that the 2003 custody order plainly modified the original custody agreement entered in 1996. The trial court correctly held a custody hearing and determined that it was in the best interests of the child to remain with her father after the mother completed active duty. There was nothing in the 2003 order which stated that the child would automatically return to live with her mother after the mother’s active duty was complete. Such a term, which requires speculation as to future circumstance, would have been inappropriate since the best interests of the child must always be considered. Moreover, the trial court was not clearly erroneous in its findings of fact nor did it abuse its discretion. Therefore, the trial court ruling should have been affirmed.