Published: Opinion Affirming
Jennifer Rice appeals from the order of Bracken Circuit Court denying her motion to alter, amend or vacate its order adopting the report of the Domestic Relations Commissioner which designated Willard Rice, her former husband, primary residential custodian of their three minor children during the school year. She argues that the trial court abused its discretion and that naming Willard primary custodian was palpable error and should be reversed.
When the parties were divorced in 2009, they agreed to grant temporary custody to Willard so the children could continue their homeschooling with Willard’s mother. In their separation agreement, the parties specified that beginning in January, 2010 the parties would share joint custody. The children would be homeschooled by the paternal grandmother when in Willard’s custody and by Jennifer when she had custody.
In October, 2010 Jennifer filed a motion for change of custody requesting that she be designated primary residential custodian and an order requiring children to attend public schools, alleging that test results revealed the children were not functioning at grade level.
A Guardian Ad Litem was appointed, who concluded both parents would be suitable as residential parents and recommended that Jennifer be the primary custodian because of the GAL’s belief that public school would be more beneficial. After the GAL’s report, the parties agreed the children would attend public school regardless of which parent was named primary custodian. The Court referred the issue of custody to the Domestic Relations Commissioner.
The DRC determined that the children should live with Willard during the school year and spend 3 out of 4 weekends each month with Jennifer, allowing the children to remain in or near the home where they grew up and near the paternal grandparents who had been regular babysitters. Willard had a long-term job and stable home, while Jennifer was unemployed and had unstable living arrangements.
The Court entered an order confirming the DRC’s report. Jennifer filed a motion to alter, amend or vacate the order alleging that the DRC’s findings and the GAL’s report supported her contention that it was in the best interest of the children for her to be designated primary residential parent. Jennifer’s motion was denied, the order confirming the DRC’s report was reaffirmed and Jennifer filed this appeal.
Jennifer was not precluded from raising a palpable error claim on appeal pursuant to CR 61.02. The Court of Appeals, however, disagreed that granting custody to Willard during the school year was palpable error that should be reversed.
With respect to Jennifer’s allegation of abuse of discretion, the Court of Appeals considered whether the trial judge’s findings were clearly erroneous or an abuse of discretion which “implied arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)(citations omitted).
Jennifer claimed the trial court’s ruling gave the appearance of improperly favoring grandparents over parents. Although the grandparents watched the children while Willard was working, it did not mean the court granted custody to the grandparents. Modification of the custody agreement was not warranted on the basis of a work schedule.
The Court of Appeals considered the applicable factors in KRS 403.270(2) and held that the trial judge did not abuse his discretion by deferring to the DRC’s recommendations, even though Jennifer claimed the grandfather was in poor health and there was an active DVO against him related to corporal punishment of the children.
The Court of Appeals held that without clearly erroneous findings by the DRC, there was no palpable error or abuse of discretion by the trial court. The trial court’s order denying Jennifer’s motion to alter, amend or vacate the DRC report is affirmed.