Smith v. Smith

NOT TO BE PUBLISHED

APPEAL FROM HARDIN CIRCUIT COURT HONORABLE M. BRENT HALL, JUDGE ACTION NO. 14-CI-00304

BRIEFS FOR APPELLANT: William D. Tingley Ft. Mitchell, Kentucky

BRIEF FOR APPELLEE: Jeremy S. Aldridge Elizabethtown, Kentucky

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

OPINION

CALDWELL, JUDGE

Sabrina Prem (formerly known as Sabrina Smith and hereinafter "Prem") appeals from one or more decisions of the Hardin Family Court based on its alleged failure to issue required findings of fact and conclusions of law. For the reasons stated herein, we affirm.

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FACTUAL BACKGROUND

Prem and Jeremy Smith ("Smith") were married in 1998 and divorced in 2014. They have a minor child, born in 2007. Prem and Smith share joint custody of the child. In 2018, Prem filed a motion seeking the family court's approval for her to relocate to Texas with the minor child. Prem's new husband wished to move to Texas to help out his elderly, ill father.

At a hearing on Prem's initial relocation motion, the family court judge inquired whether Prem intended to move to Texas if the family court denied her motion to relocate with the child. Prem indicated that she would not relocate without the child. The family court denied this first relocation motion. Prem remained in Kentucky with the child for about a year while her new husband moved to Texas.

In July 2019, Prem moved to Texas to live with her husband. The child remained in Kentucky and was primarily in Smith's care. In September 2019, Prem filed a motion with the family court to modify timesharing so that the child could live with her in Texas.

Following an evidentiary hearing, the family court entered an opinion and order in early March 2020 denying Prem's motion to modify timesharing to allow the child to live with her. It ordered that Prem could have parenting time

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under the schedule provided in local timesharing guidelines and was responsible for transportation costs for her parenting time since she voluntarily relocated.

Prem filed a motion for relief under Kentucky Rules of Civil Procedure ("CR") 52. Specifically, she requested, pursuant to CR 52.02, factual findings on why the family court found the parenting time schedule in local rules in the child's best interest. And she also generally requested that the family court amend its order to comply with "formatting mandates of CR 52.01." (Record "R.," p. 360.) Around this same time, Smith also filed a motion requesting that Prem be ordered to pay child support and to pay for one-half of the child's private school costs.

Following some pandemic-related delay, the family court evidently heard Prem's CR 52 motion and Smith's motion for child support and reimbursement for half the child's private school costs in the summer of 2020.^[1] On July 17, 2020, the family court issued an order granting Smith's motion. In this same order, the family court reiterated its denial of Prem's relocation motion, its

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award of parenting time under local guidelines and its holding that Prem must pay all transportation costs to exercise her parenting times since she had voluntarily moved to Texas. However, this July 2020 order did not rule on Prem's CR 52 motion or contain findings of fact or conclusions of law.

Prem then filed another motion seeking CR 52 relief. She specifically sought, under CR 52.02, findings of fact on income and health care expenses used in calculating child support. And she again sought findings of fact on why the family court adopted the parenting time schedule in Hardin County local rules. Also, she requested that the family court "conform its order to the formatting requirements of CR 52.01." (R., p. 400.)

The family court then entered an "Opinion and Order" in September 2020. While this order did not explicitly grant or deny the requested CR 52 relief, it did contain discussion of the family court's observations and reasoning on various matters. Though styled as an opinion and order, the family court did not actually order anything, but it did set forth findings of fact and conclusions of law, even though they were not specifically denominated as such. Prem then filed a timely appeal. Further facts will be provided as needed.

Identification of Issues on Appeal

In the introduction to her appellant's brief, Prem states that she: "seeks an opinion and order vacating trial court's orders denying relocation,

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changing primary residential custody, automatically using a local rule parenting schedule, allocating child travel costs by local rule, calculating child support, and requiring payment of private school tuition." (Page i of Appellant's brief.) Despite this indication that she seeks for this Court to vacate plural orders, her notice of appeal states that she appeals from only one trial court decision-its opinion and order entered September 30, 2020. Her appellate brief states that she appeals from the family court's July 17, 2020 order as amended by its September 30, 2020 opinion and order. (Page 1 of Appellant's brief.)

Although the introduction to Prem's brief may suggest that she ultimately seeks broader and more substantive relief, the issues she asserts in the argument portion of her brief focus on procedural matters. Specifically, she argues that the family court failed to comply with CR 52.01 requirements and to make findings of fact about whether the parenting time schedule suggested in local rules was in the child's best interest. And she does not discuss the actual merits of such decisions as denying her motion for relocation or determining the amount of child support. So, we do not review the merits of the family court's rulings on such matters as custody, timesharing, and child support for error.

Instead, we consider only whether the family court complied with its duties under CR 52 and caselaw construing CR 52. In so doing, we do not confine our examination to the family court's July 17, 2020 order and its September 30,

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2020 opinion and order. Instead, we also examine the family court's opinion and order entered March 4, 2020 in which it denied relocation, adopted the timesharing schedule in local rules, and allocated all transportation costs for exercising Prem's parental time to her as well as granting Smith's motion to terminate his prior child support obligation.

STANDARD OF REVIEW

Reviewing a trial court's denial of a request for additional findings of fact under CR 52.02, we held that the question of whether the trial court omitted a finding on a matter essential to a judgment is a matter of law. McKinney v. McKinney, 257 S.W.3d 130, 133-34 (Ky. App. 2008). Rulings on questions of law are reviewed de novo on appeal. Davis v. Fischer Single Family Homes, 231 S.W.3d 767, 779 (Ky. App. 2007). In other words, the Court of Appeals need not defer to a trial court's conclusion that its findings were sufficient when the trial court was presented with a motion for additional findings under CR 52.02. McKinney, 257 S.W.3d at 134. Although there appears to be no specific controlling authority about the standard of review for a trial court's ruling on a more general request for it to comply with the requirements of CR 52.01, questions concerning the application of CR 52.01 similarly appear to be questions of law subject to a de novo standard of review.

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Applicable Law About Duty of Trial Court to Make Findings under CR 52^[2]

CR 52.01 states: "In all actions tried upon the facts without a jury . . ., the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment . . . ." CR 52.01 further provides: "Requests for findings are not necessary for purposes of review except as provided in Rule 52.04." And CR 52.01 also states:

If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02

CR 52.02 provides that a party may file a motion within ten days of entry of judgment requesting amended and/or additional findings and that the trial court "may amend its findings or make additional findings and may amend the judgment accordingly."

CR 52.04 states

A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a

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written request for a finding on that issue or by a motion pursuant to Rule 52.02

The Kentucky Supreme Court provided guidance on the application of these potentially inconsistent provisions in CR 52 in Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). Anderson v. Johnson also involved a family court's resolution of a motion to modify parental timesharing so that a parent could relocate with a minor child. See id. at 454. Prem even characterizes her appeal as "a classic Anderson v. Johnson, CR 52.01 appeal." (Page ii of Appellant's brief) (footnote omitted).

The Kentucky Supreme Court noted CR 52.01's statement that it applies to all actions tried on the facts without a jury and its seemingly possibly contradictory statement that it did not apply to resolution of many motions with certain exceptions. The Court read CR 52.01 to apply to resolutions of motions to modify timesharing to permit relocation. Anderson, 350 S.W.3d at 456-57. And it succinctly stated that in ruling on such motions to modify timesharing, "family courts must make findings of fact and conclusions of law, and must enter the appropriate order of judgment when hearing modification motions." Id. at 457...