It is difficult enough to keep track of the "to be published" decisions. Yet here is the digest of this "not to be published" decision as the Kentucky Supreme Court has accepted discretionary review.
Pennington v. Marcum, 2006 WL 2194903 (Ky. App.)
Issues and Holdings:
1. Whether lower court erred by disregarding the findings of the Domestic Relations Commissioner and by making a decision contrary to the DRC’s recommendations without holding an evidentiary hearing. The Court held no, the court did not err.
2. Whether the lower court erred in failing to consider the best interests of the child standard. The Court held no, the lower court did not err.
In January 2001 the parties agreed to share joint custody of their one child, with the mother having physical custody. In 2002 the mother married and moved to West Virginia, but the father continued his weekly visits. In July 2004 the mother moved to Virginia, six hours away from the father’s home. The father then filed a motion to modify custody, seeking physical custody of the child.
The Domestic Relations Commissioner held a full hearing and recommended that the father have physical custody. The mother filed exceptions to the DRC’s recommendations. The circuit court considered the recommendations and heard oral arguments, and then sustained the mother’s exceptions and restored physical custody to her. The father appealed.
First, CR 53.06(2) does not mandate a full evidentiary hearing by the circuit court, it only requires an opportunity for oral argument. Therefore, the court properly reviewed the DRC’s report and considered arguments of counsel.
Second, KRS 403.340 (3) outlines the factors that the court must consider prior to modifying custody. Said statute also refers to the best interests of the child analysis set out in KRS 403.270 (2). The circuit court noted in its order that the child flourished in her new setting in Virginia. The court also noted that it would not deprive the mother of custody just because she moved farther away from the father. The Court found that there was substantial evidence to support a finding in favor of the mother.
Accordingly, the Court affirmed the lower court’s order.