Still Another KY Move Away Case

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Editor's note: This case is now final, and we will update post with SW3d cite when available.
Robinson v. Robinson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3460123 (Ky. App.)
Issue and Holding:
Whether the trial court had the jurisdiction to modify the custody decree regarding one parent’s wish to relocate with the children. The Court held no, the trial court lacked jurisdiction.

Facts:

The court entered its first custodial ruling in the divorce decree in June 2005. The Court awarded the parties joint custody of the children and designated the mother as the primary custodian. The decree also stated that if either party relocated more than 150 miles from the county that the time

sharing arrangement would be subject to de novo review and modification.
After the decree, the husband stopped paying certain debts that were assigned to him and declared bankruptcy. As a result, the creditors pursued the wife, adding $17,501.78 to her liabilities and causing her to sell the marital property. Around the same time, the wife received an employment offer that would provide her and her family substantially higher income, but also required her to relocate to Memphis, TN.
In October 2005 the wife filed a motion to modify the husband’s mid-week visitation, because she thought that such was required by the decree. The court never ruled on the motion. The husband filed a motion to set aside the decree as to custody based on fraud and the newly discovered evidence that the wife wanted to relocate. He claimed that the wife assured him during the proceedings that she had no plans for leaving Kentucky with the children, and that is the only reason he agreed to her being the primary custodian. He argued that vacating the decree would allow a de novo review of the permanent custody ruling without him needing to show endangerment, as under Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003), but only best interests of the children.
At the hearing, the husband’s attorney represented to the court that the clause in the decree stated that if a party relocated more than 150 miles away, the court would review the issue of custody de novo. The court accepted the attorney’s representation. The court denied the husband’s motion to set aside the decree, but then ordered that de novo testimony be taken if the wife wanted to relocate. The wife decided to relocate, her testimony was taken, and the court then ordered that the parties share joint custody, designated the husband as primary custodian, and ordered the wife to pay the husband child support. The wife appealed.

Analysis:

There is no specific statute in Kentucky that addresses parental relocation. Thus, the Court relied on KRS 403.340 and KRS 403.350. These statutes require that a motion to modify, filed within two years of the decree, be accompanied by at least two affidavits. If this jurisdictional requirement is not met, a court cannot entertain the motion. The husband did not meet these requirements, and therefore, the court lacked jurisdiction to modify custody.
The Court also noted that the lower court committed reversible error when it continued to entertain the issue of modification after it denied the husband’s motion to vacate the decree. The inquiry into modification of custody should have ended after the husband’s motion was denied. The lower court also committed reversible error when it relied on the husband’s attorney’s representation as to the Decree. The Decree permitted review only of the time sharing arrangement, not the custody award. The court’s incorrect interpretation of the provision was reversible error.
The Court held that even if the Decree contained a provision allowing modification of custody, instead of the time sharing arrangement, the provision would be invalid unless it complied with KRS 403.340.
Lastly, the Court noted that there is no substantive basis for preventing the wife from relocating with the children to Memphis.
As such, the Court reversed the lower court’s order, ordered that the order stating the wife is to be the primary residential custodian of the children be reinstated, and remanded the case for an order consistent with the opinion.

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