Quisenberry v. Quisenberry

erroneous, or concur in remand notify Attorney General anew Certainly start all latter over. preferable

approach is former.

WINTERSHEIMER, J., joins.

Larry Thomas

QUISENBERRY, Appellant, (Now QUISENBERRY Ann

Gertrude

Oexmann), Appellee.

No. 89-SC-335-DG.

Supreme Kentucky.

March

(c)The environment en- mental, dangers seriously physical, his moral, or emotional and the harm change of to be caused envi- outweighed ronment is its to him.” custody decree Modification of a within years the first after its date is covered two immediately preceding by the subsection. provides: Section of KRS 403.340 modify custody motion to decree “No may be made earlier than date, permits it to be unless made on the basis of affidavits that there the child’s is reason to believe endanger seriously his physical, moral or emotional Lexington, Philpot, appellant. Tim for health.” Bratt, Lexington, appellee. David A. (2)(c), subsections, (1) and uti- Thus both “present environment endan- lize whether LEIBSON, Justice. gers seriously his principal issue us is the stan- before as a referent. Never- or emotional health” theless, despite applied by dard to be the trial court contends that presumption in ruling a motion to “the on this similar parent only intend- years after the date of custodial filed more than two favor of the years,” and that “after for the first original custody decree. Otherwise ed two clearly the stated, year period, it is question is the statu- the two 403.340(2)(c) standard that should ap- interest of the child tory requirements in KRS Appellant further con- guide the court.” considering whether ply in this case before danger” “serious that even if the tends necessary to serve the best “modification is after the initial two standard still 403.340(2)pro- interest of the child.” KRS misap- has been year period, that standard entirety: in its vides in the case. plied by the trial court jurisdiction “If a court of this pursuant to the uniform child Quisenberry were Larry and Gertrude act, not modi- jurisdiction the court shall on November divorced finds, prior custody one, decree unless it fy age Tommy, then of their son have arisen upon parties of facts that sub- the basis mother. Both awarded to the remarried, appears or that were un- prior since the decree each sequently entry time, time of the mother to the court at the single known at this name, decree, change has Oex- that a her maiden prior having of the resumed of the in the circumstances occurred mann. custodian, and that the modi- child or 17, 1986, years after ten On November necessary to serve the best fication decree, Larry filed the date of applying these of the child. interests There had modify custody. retain the cus- the court shall standards support bickering over been extensive prior pursuant appointed todian Eventually, in the interim. and visitation unless: decree against Larry’s hearing ruling after a (a) agrees the modifi- The custodian commission- relations by a domestic motion

cation; 6, 1988, er, Fayette Circuit January on of the modification integrated into denied (b) The child has been and other Although exceptions consent decree. family petitioner with filed, there were post-judgment motions custodian; and their inexcusable from this initial tween appeal such has been subsequent manipulative behavior. order. report fol- psychologist visit to 21, 1988, Thereafter, Larry April from an obvious effort bolster lowed moved court to motion principal psy- reason case. behind sup- custody, and he filed further “Tommy go- chologist’s conclusion that son, porting from himself and affidavits far off his father at ing to be better with Tommy, an affidavit from Dr. Stuart and mother,” that point than with this Cooke, originally A. Dr. was Ph.D. Cooke intelligent “Tommy enough and mature appointed psychologist. previ- a court His imput into enough major to some have [sic] report part ous was considered should decision as to where he live.” the originally deemed insufficient to evidence significant The trial court found no new support modify custody. a to Dr. motion that The record fails to establish evidence. incorpo- Cooke’snew affidavit attached and reopen trial decision not to the the court’s by report appel- a to rated reference the clearly erroneous. On the con- case lawyer prepared lant’s which had been fol- trary, reading report a of this new close lowing by February a visit on major Tommy’s confirms that the cause Tommy and his father to Dr. Cooke’s of- “the difficulties are differences between” fice. This affidavit concludes: parents. the The trial court stated “a dan- “The child’s environment ger respondent’s to the arises from endangers1 his his mother emotional change custody [appellant’s] efforts to the professional opinion, my in and child. child’s to situation needs likely by change the harm to be caused a be stabilized.” Such conclusions were outweighed of environment is its ad- clearly unreasonable. him, therefore, vantages and to the cus- tody of that a mo should be transferred maintains filed than change custody father.” tion for more custody years after the date of the two 23, 1988, May an order dated adjudicated solely decree should be the appellant’s trial denied motion to But basis of the best interest of the child. Further, reopen custody. the court orders: of the over and under two Respondent [appellant] again “If the years substantially subsections are custody moves to question pose Both same. subsections $5,000 pay issue he shall toward Petition- “child’s whether [appellee's] previously attorney er’s endangers seriously his physical, pay incurred and shall costs and moral, or health.”2 KRS 403.- emotional response fees incurred Petitioner in to 340(2)(c) adds as a further consideration a new motion.” aby “the harm caused attempt evidentiary willWe to cover outweighed by change of environment opinion. say in details Suffice child],” in deference [the supports that the evidence more than stability years for two the need the over findings of trial commissioner and (2) requires situation. Subsection further court that the child’s environ- change in the circumstances of the “a ... endanger seriously ment does not child or his It is obvious the custodian.” or emotion- provisions of intend inhi this subsection health. al litigation simply further initiated be bit child, parent, or report psycholo- from child the noncustodial The initial cause both, suggests that a gist doing that the child is sur- believe considering hostility be- the child’s best interest. prisingly well would (1) endanger" report "may rather note neither 2. Subsection states 1. We that the affidavit nor potential "endangers.” and dan- than ger, Present danger, "serious" term concludes serious, appropriate considerations are 403.340(2)(c). KRS instance, or under two either whether over initial decree. misinterpreted Appellant 340(2) holding does no more than make clear that S, Ky.App., S a asked when court is to entertain a approve. we S S states “the case it shall not do so unless the provide of KRS is to circumstances covered stability finality to a decree.” present. are This imply “purpose” the same Next, appellant points to 403.- KRS (2). cannot be found in subsection as support argument. for his KRS (1) differences between subsections requires seeking “party tempo procedural, and arise accommodate rary custody order or modification of passage circumstances inherent in the custody decree” to an submit affidavit with time. “setting supporting his motion facts forth specifies Thus subsection of 403.340 requested order or modification.” It is de- 403.340(2), not a substitute as the “[n]o cree may contends, be earlier appellant procedural made than simply a but date, establishing its unless the court” deems bringing device method for justified “on the of basis affidavits” such a motion before court. The exist presented. hand, procedure provide On the other ence of this not a subsection does (2) permits 403.340(2)(c) such hearing a motion and a vehicle to discard KRS and need of utilize the best rule as the sole preliminary without a determina- interest tion, deciding' change standard of requires proof change “that a a has so disposed, issue. Were we we could occurred circumstances of ignore statutory (1) mandate 403.- or KRS his custodian.” Both subsection and 340(2)(c) (2) to consider first whether require “seriously a that may “[t]he situation endangers child’s seri endanger” quite the child and both obvious- ously his emo or ly legislative express the intent to stabilize tional and the harm to be the child’s condition and inhibit further liti- change caused a if out of environment gation over unless the child is weighed him.” to As the danger.3 in serious Appeals of stated Wilcher pre refers to the us Wilcher, (1978), Ky.App., 566 S.W.2d 173 fatory phrase subsection a court “[i]f the obvious of both KRS jurisdiction pursuant of to of place proof and .340 is to the burden custody jurisdiction the uniform child act seeking modify custody, to to ...,” suggests and this means the subsec encourage stability in the custodial rela reopened tion cases does to tionship. origi same court where the order keyA factor in the of a emotional health Child nated. Uniform Juris child is the level of tension between (U.C.C.J.A.), 403.400-.630, diction Act parent mother father. con- truly and A cases, limited. It to all is not so of cerned with the best interest his child regardless order of whether of will work to reduce the level this ten- originated with the court now asked to sion, during after a divorce as well custody, originated a of consider marriage. Litigation counterproductive By entering its terms a court elsewhere. end, to this and statutes were struc- original custody may required an decree litiga- discourage post-judgment to tured subsequent mo jurisdiction refuse seeking except party tion where a change custody because change custody can first cross one of the living arrangements and establishing thresholds KRS 403.340. Thus, place of residence. case, recently rejected Twice we similar and have a threshold consideration attempts replace statutory thresholds prefatory to it in KRS 403.- reference family petitioner may into the with consent also subsection Under agrees to the the "custodian the custodian." integrated modification” or the "child been litigation. In the circumstances re- future designed protect parent’s custodial case, we, Appeals, like the Court of inter- lationship with a battle over best Collinsworth, for the trial may appreciate the reasons child. In Davis v. est of the for future imposing penalty Ky., Engle and court’s order 2/8/90), pre- free to Jewell, court is not Ky. (unpublished, litigation, rendered but the and upheld statutory principle judge in KRS the next motion as vexatious we to believe harassing, not award cus- if there is reason 405.020 that a court would even nonparent rights of a case based on what tody to a over the such be the proved that the far. parent place unless it was first taken thus (“unsuited trust”), parent was unfit Therefore, the trial court we affirm might in the even when to do so except as to that Appeals Thus, under circum- interest of the child. relat- final order portion of the trial court’s stances somewhat similar to the in the of future ing event case, recognizing importance of while litigation. standard, we the best interest respected mandates of the COMBS, STEPHENS, C.J., and GANT Assembly providing for other con- General JJ., VANCE, concur. legislature deems siderations which the WINTERSHEIMER, J., concurs dis- equally important. We are not free to considerations, separate opinion. even regard such further inclined. were we so LAMBERT, J., by separate dissents por necessary It is to reverse that opinion. imposing a

tion of- the trial court’s order LAMBERT, Justice, dissenting. $5,000 respondent penalty in the event “the no au- single paragraph and With but a again reopen court to the custo moves the the most thority, majority the has settled dy issue.” pro- case. It has important issue Paragraph 3. of the court’s order states: 403.340(2) applies to that KRS claimed Respondent again “If moves the prefa- Despite cases. wholly intrastate he issue statute, “If a court of tory language of the $5,000 Petitioner’s at- pay shall toward jurisdiction pursuant this state has torney previously incurred and shall Act Custody Jurisdiction Uniform Child pay costs and fees incurred “ap- it ...,” decided that majority response to motion.” Petitioner in a new cases, regardless of whether plies to all provides: of KRS 403.340 Subsection originated custody order with as- “Attorney fees and costs shall be custody, to consider now asked seeking modifica- against party sessed originated elsewhere.” finds that the modifica- tion if the court introductory plain By its is vexatious and constitutes tion action applica- limits its phrase KRS harassment.” forum cases which those court has subsection the trial Under this pursuant to acquired jurisdiction court has attorney fees and costs power to assess To the U.C.C.J.A. litigation he at the conclusion fur- look no applies, one need U.C.C.J.A. harass- and constitutes finds “is vexatious 403.400, section of the first ther than KRS the trial ment.” In this instance section, “Pur- titled Act. This this uniform cross-appeal- appellee failed to do so. construction,” begins as follows: poses; issue, Appeals on this ed to the Court purposes of KRS “(1) general relief, appellee has and the no but obtained nine subsec- Thereafter are to:” to 403.620 matter pursue this to further failed applica- limit the are set forth which tions discretionary review. cross-motion for in which another Act to cases bility of the parties. some connection with is the Therefore, us only issue before abundantly clear that it Finally, to make referring potential order validity of an 490 gov- Finally, Amos, 532, purposes set forth in KRS 403.400 Amos 282 Ark. (1984), Act, 669 S.W.2d 200

ern the entire section Arkansas Su- states: preme Court said “KRS 403.410 to 403.620 shall be con- “The chancellor found that the statute promote general purposes strued to Arkansas codification of KRS 403.- [the stated in this section.” solely battles between 420] (1980), In 96 ALR3d 968 an annotation residents of different states. We Construction, Ap- entitled Validity, agree.” Id. 669 S.W.2d at 201. plication Child Jur- of Uniform worse, To make matters Act, in- isdiction collects numerous cases disregarded Kentucky precedent even terpreting the Act. In Section a number Paxton, Ky., this issue. In Shumaker v. throughout of decisions from the United recog- this Court are annotated and States demonstrate that purposes nized the purpose of the Act is to define child follows: custody jurisdiction more when two or statute is “While we feel that the above states have a connection the child. A primarily aimed at interstate rather than flatty number of courts have stated that applications intra-state we do view as the U.C.C.J.A. does not to intrastate affording guidance some direction and Nelson, In custody disputes. Nelson v. proper to main- for the forum which Dist.1983), (Fla.App. 433 So.2d 1015 . have here.” tain an action such as we proposition is stated as follows: Id. at 132. disputes “Insofar as intrastate candidly acknowl- Shumaker concerned, the Uniform Child Custo edged nonapplicability of the U.C.C.J.A. dy apply, Jurisdiction Act it for intrastate cases but borrowed from Adams, (Fla.3d Adams v. So.2d determining venue. The 1979), and the court which entered DCA majority in the case at bar demonstrates ex decree continues to have flatly holds that the U.C.C. such candor. It jurisdiction modify clusive the decree.” case. J.A. Trouth, Marriage In In Re 631 P.2d of disregard foregoing of the au- In clear (Colo.App.1981), the Colorado Court of rule of law thority prevailing and the Appeals said: States, majority throughout the United “Thus, held, thresh- the U.C.C.J.A. is a provision “This of the Uniform Child ” This Act, in case.... old consideration together Jurisdiction only to the extent conclusion is accurate Act purposes, its stated indicate that the forum court must first that the pure apply to actions which are sought to be modified whether the order ly purposes The of the Act intrastate. in- Wholly in state. rendered another promote cooperation between are to governed by the U.C. are not trastate cases different which will lead courts of states 403.340(2) by terms KRS C.J.A. and its own custody1, to an informed decision on Sec custody modifi- apply not to intrastate does C.R.S.1973, 14-13-102, ‘pre and to cation actions. shifting desperate from state to vent the thousands of innocent children state of if that Perhaps the believes gain parties seeking to cus by 403.340(2) interested apply not to intrastate does though de tody rights cases, in one state even or an a void the law there of anoth rights by by those the decree a trial court nied of standards absence Ball, 190 Colo. on a Fry er state.’ v. measure the evidence should situation, (1975). Thus, how- custody. 14-13-111 P.2d 402 Section Such child, ever, law of Ken- hardly unique applicable is not here since is Legislature has many resided in areas the parents, grandparents tucky. and his we think Colorado, enact statutes where and the custo failed to and the divorce is our It be desirable. by a Colorado such would dy decree were entered however, to use a “law prerogative, court.” Id. at 1185. Appeals The Court of should be affirmed to make a statute when wrench” terms We very apply. adopted proper it does because trial court guided of should be well known rules determining that the husband standard such as found construction of His proof. failed to his burden had meet v. Gateway Company Construction unconvincing there was evidence was Wallbaum, Ky., 356 S.W.2d 247 danger require a sufficient to follows: reviewing can- custody. A court way “The in most cases best to ascertain view for those of the trial not substitute its meaning such intent or to determine the clear or an in the absence of error of a statute is to look Neither is of discretion. factor abuse used, must read into but intention Reickle, Ky., 719 here. Reichle language. justified the statute not (1986). S.W.2d primary the in- The rule is ascertain concept interest of the best employed from in en- tention the words cus- any fundamental in consideration of is acting guess not to what the statute and application tody. There no conflict Legislature may have intended of KRS 403.340 and the interest express. had did not Resort must be abundantly philosophy. Here it is words, first to the which are decisive clear that it would be in the best interest they are statute clear. words parents for the to reduce the the child usual, given ordinary, are to be their in the child’s life. tensions omitted.) (Citations everyday meaning.” . at 249. Id. majority’s misinterpretation of KRS nearly impenetra- created a

ble barrier noncustodial when sought. Regardless passed

of the number of which have decree, entry original

since changes in par- the circumstances Cy MINING MCI CORPORATION ties, child, age and the wishes of Realty Corporation, prus Southern (a significant at the child factor in the case Appellants/Cross-Appellees, bar), required trial courts will be to retain original unless custodian the movant able to demonstrate that STACY, Adrian “endangers seriously his Appellee/Cross-Appellant. moral or emotional health,” impossi- nearly a standard which is 88-CA-574-MR, 88-CA-761-MR. Nos. ordinary ble to achieve in circumstances. Appeals Kentucky. opinion I am of the trial courts hamstrung degree, should not be such a 30, 1989. June but should retain a measure discretion Rehearing As Modified on Denial upon modification Sept. 1989. By ju- showing changed circumstances. Discretionary Review Denied power impose dicious use by Supreme Court fees, judges attorneys’ costs and 18, April vexatious prevent be able to would litigation. modification Justice,

WINTERSHEIMER,

concurring. by the result with the achieved

I concur my opinion I wish to state separately.

reasons

Case Details

Case Name: Quisenberry v. Quisenberry

Court Name: Kentucky Supreme Court

Date Published: Mar 15, 1990

Citation: 785 S.W.2d 485

Docket Number: 89-SC-335-DG

Court Abbreviation: Ky.