Anderson v. Johnson, 2011 Ky. LEXIS 132

Divorced parents share a unilateral custody order with equal timesharing; a 2007 joint custody arrangement existed; in 2009 Anderson sought to relocate with the child to Paducah, KY; Johnson opposed relocation; the Franklin Circuit Family Court held relocation not in the child’s best interests and denied modification without explicit findings of fact; appellate court affirmed pending remand or findings; this Court reviews procedural requirements for post-decree modification of timesharing.
The family court conducted a May 4, 2009 hearing with witnesses from both sides but issued only a conclusion that relocation was not in the child’s best interests, without specific findings of fact or separate conclusions of law.
The Court addresses whether post-decree timesharing modifications are “actions tried upon the facts without a jury” requiring CR 52.01 findings, and whether CR 52.04 preservation is necessary when no findings were made.
The Court clarifies that post-decree modification of timesharing is an action tried on the merits, requiring specific findings of fact and separate conclusions of law, followed by a judgment.
A tension exists between CR 52.01 and CR 52.04, but the Court overrules Hollon v. Hollon to align with CR 52.01’s broad duty to findings and CR 52.04’s limited role in preserving such errors.
The case is remanded to the Franklin Circuit Family Court to make explicit findings of fact and conclusions of law consistent with the opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CR 52.01 findings are required for post-decree timesharing modification.	Anderson argues findings are needed.	Johnson argues no CR 52.01 findings needed.	Yes; findings required; remand for findings.
Whether CR 52.04 preservation is necessary when no findings were made.	Anderson contends lack of findings can be reviewed without a CR 52.04 request.	Johnson contends preservation is required.	CR 52.04 not fatal to appeal when there are no findings; but overall remand for merits.
Whether Hollon v. Hollon is correctly overruled on interpretation of CR 52 in family-law modifications.	Anderson relies on earlier Hollon reasoning.	Johnson argues Hollon remains controlling.	Hollon overruled; CR 52.01 governs findings in modification motions.

Burnett v. Burnett, 516 S.W.2d 330 (Ky.1974) (displaced by statute and CR 52 requirements in modification context)
Hollon v. Hollon, 623 S.W.2d 898 (Ky.1981) (overruled; required findings depend on CR 52; misapplied rules earlier)
Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008) (addresses finality and modification of custody; context for this case)