Gullion v. Gullion, 163 SW3d 888 (Ky., 2005)
Affidavits are not required for CR 59 motions. Upon remand
the trial court is directed to consider only evidence in existence
at the time of trial. A custody modification cannot be requested
until there is a final custody order to modify.
Parents had 50/50 pendente lite joint custody. The Circuit Court adopted the recommendation of the DRC giving father physical custody of the children. Mother filed a CR 59 motion to alter, amend or vacate and within the motion requested primary custody. Before it was ruled upon, husband obtained an emergency custody order which suspended mother's visitation. A year later the Court ruled on the motions, considering facts that had arisen since trial, and designated mother as the primary custodian. The Supreme Court held that affidavits were not required because a CR 59 motion is procedurally different than a KRS 403.340 modification. Affidavits are not required for CR 59 motions, just as they are not required for CR 60 motions. The trial court maintained continuing jurisdiction while the CR 59 motion was pending. A custody modification cannot be requested until there is a final custody order to modify.
The matter was remanded to the trial court because the CR 59 motion was granted, in part, on evidence not in existence at the time of trial. If facts arose since the trial that justified a change in custody, the law adequately provides a method to address such a situation.
Newly discovered evidence as a CR 59 grounds must be existing at the time of trial, otherwise litigation would never come to an end.