Annie Smith v. Joshua Smith

RENDERED: JULY 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1173-MR
ANNIE SMITH APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE JOHN F. VINCENT, JUDGE
ACTION NO. 21-CI-00638
JOSHUA SMITH APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT,
JUDGES.
ECKERLE, JUDGE: Annie Smith (“Mother”) appeals from an order of the Boyd
Circuit Court which granted the post-judgment motion of Joshua Smith (“Father”)
to modify the parties’ timesharing agreement. Mother argues that the Trial Court
failed to apply properly the best-interests-of-the-child standard required for
modification to shared parenting-time. We agree that the findings are insufficient
to determine whether the Trial Court applied the proper standard. Hence, we
reverse and remand for additional findings.
Mother and Father were married in 2013 and separated in 2021. One
child, L.T.S. (“Child”) was born of the marriage in 2015. Father filed a petition for
dissolution of the marriage on October 26, 2021. At the time of the filing of the
petition, the parties had entered into a written separation agreement (“the
Agreement”) resolving all of the issues related to the dissolution, including custody
and timesharing. On that issue, the parties agreed to have joint custody of Child,
with Mother being the primary residential custodian.
The Agreement further provided that Father shall have timesharing
Saturday 9:00 a.m. through Monday at 8:30 a.m., weekly, with Mother receiving
one weekend per month with Child. The parties further acknowledged that
“additional timesharing may be arranged based on each parties [sic] work
schedule.” The Agreement further stated that the parties “agree to work together to
equally divide holidays.” In the event of a disagreement on timesharing during the
holidays, the parties agreed to follow Local Timesharing Guidelines. The parties
agreed to divide the child income-tax credit in alternating years. And finally,
“[b]ased on the incomes of the parties, joint custody, and equal timesharing, the
parties agree to waive child support.”
-2-
The Trial Court entered a decree incorporating the Agreement on
January 4, 2022. However, the parties soon had disagreements regarding
timesharing. On April 1, 2022, Mother filed a motion to modify the Agreement.
She specifically requested that she be awarded child support and that she be
allowed to claim Child as a dependent for income-tax purposes every year. After
filing his response to this motion, Father also filed a motion to modify timesharing.
Father stated that Mother was interfering with the exercise of his timesharing.
Consequently, he requested that the Court set a specific schedule with alternating-
week custody.
The Trial Court assigned the motions to a hearing before a Domestic
Relations Commissioner (“DRC”), who held a hearing on May 12, 2022, but did
not take any evidence. Following the hearing, the DRC issued a report
recommending that the parties exercise timesharing on a week-to-week basis until
a full hearing could be scheduled. The DRC also recommended that Mother shall
claim the tax exemption for Child for the 2022 tax year.
Mother filed objections to the DRC’s report, which the Trial Court
sustained in part. In an order entered on June 3, 2022, the Court specified that the
parties’ week-to-week timesharing shall run from June 1, 2022, until July 31, 2022,
or until the DRC hearing. The Court otherwise adopted the DRC’s
recommendations.
-3-
The matter was scheduled for a hearing on August 3, 2022. Mother
testified that she was opposed to equal timesharing because she did not believe
Father was seeking it for the right reasons. Mother stated that she and Child have a
very close relationship. She also testified that Child did not feel comfortable at
Father’s house. Mother did not specify the alleged difficulties that Child was
having, but stated her belief that Father was too strict with Child. Mother stated
that she believed shared parenting time would deprive Child of a stable home, and
thus she did not want the week-to-week schedule. She stated that Child stays with
her parents on days when she is working.
Mother agreed that Father was a good parent and she had no objection
to him having timesharing with Child. Mother also admitted that she often delayed
turning Child over to Father for timesharing because Child was sleeping. Finally,
Mother stipulated that she was no longer seeking child support.
In his testimony, Father testified that he had recently changed
positions, and his work schedule was now flexible enough to allow him to have
custody of Child during the week. On days he is scheduled to work, he drops off
Child at school, and then his parents pick up Child after school. Father believes
that it is in Child’s best interest to have a relationship with both sets of
grandparents and to spend as much time possible with each parent.
-4-
Father also stated that Mother has been uncooperative with holiday
visitation and the additional timesharing set out in the Agreement. He stated that,
while Mother allowed him to make up days missed for weekend timesharing, she
did not allow him any additional timesharing beyond the weekend visitation.
Father said he “often” had problems getting Child on time, and he frequently had
to ask for visitation. He believed that the summer timesharing has been better
because there is a consistent schedule. Father believes that Mother was
manipulating the timesharing and refusing him additional timesharing as
contemplated by the Agreement.
Father also stated that Child has his own bed at his house. He does
not believe it is appropriate for Child to sleep in bed with either parent. He also
believes that Child needs more consistent rules at home. Father testified that he
believed the intent of the Agreement was to equalize the timesharing based on the
parties’ work schedules. Father further testified that he is able to provide
consistency and stability for Child. And finally, Father was agreeable to a right of
first refusal if the week-to-week arrangement continued.
The DRC issued her report on August 12, 2022. After reviewing the
evidence, the DRC recommended that the parties continue joint custody with equal
timesharing on a week-to-week basis. The DRC also set out a specific schedule for
-5-
holiday visitation. And the DRC recommended that Mother have the child credit
for 2022, and then the parties would alternate claiming the credit.
Mother filed objections to the DRC’s report, arguing that the DRC
failed to apply KRS1 403.270 and 403.320 properly. Mother also argued that the
DRC failed to apply the best-interests standard correctly. Mother also took
exception to the DRC’s recommendations regarding the right of first refusal and
the allocation of the tax credit. The Trial Court overruled Mother’s objections and
entered an order confirming the DRC’s report on August 26, 2022. This appeal
followed.
A modification of custody is governed by KRS 403.340, and when
made within two years of the original custody decree, requires at least two
affidavits stating that there is reason to believe either that “[t]he child’s present
environment may endanger seriously his physical, mental, moral, or emotional
health” or that “[t]he custodian appointed under the prior decree has placed the
child with a de facto custodian.” KRS 403.340(2). However, when only
modification of timesharing or visitation is sought, then KRS 403.320 applies.
Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). KRS 403.320(3) allows
1
Kentucky Revised Statutes.
-6-
a court to modify timesharing or visitation “whenever modification would serve
the best interests of the child[.]”
Unlike the requirements for an initial determination of custody under
KRS 403.270 or a modification of custody under KRS 403.340, KRS 403.320 does
not impose a presumption of joint custody and equal parenting time. Layman v.
Bohanon, 599 S.W.3d 423, 430 (Ky. 2020). Rather, KRS 403.320(3), authorizes a
court to modify timesharing if it is in the best interests of the child. But under the
statute, a court can only order a “less than reasonable” timesharing arrangement if
the child’s health is seriously endangered. Layman, 599 S.W.3d at 430.
In this case, Mother does not allege that the modified timesharing was
“less than reasonable.” Rather, she argues that the DRC and the Trial Court
improperly presumed that equal timesharing would be in Child’s best interest. She
also argues that the DRC did not set out the manner in which equal timesharing
would be in Child’s best interests. Consequently, Mother maintains that the Trial
Court abused its discretion by granting equal timesharing to Father.
We agree with Father that the Trial Court had wide discretion to
modify timesharing if it was in the best interest of Child. Pennington, 266 S.W.3d
at 769. In addition, it is apparent that some modification was in order due to the
lack of a set schedule for the discretionary timesharing set out in the Agreement.
The DRC noted that “[t]here has been no evidence or testimony presented that
-7-
equal timesharing would be contrary to the best interest of the minor child.” The
DRC also expressed the opinion that Child should be sleeping in his own bed, and
that both parents should enforce a consistent bedtime for Child. The DRC then
concluded that equal timesharing would be in Child’s best interests.
As discussed in Layman, supra,
There is no set formula for determining whether a
modified timesharing arrangement is reasonable; rather,
it is a matter that must be decided based upon the unique
circumstances of each case. For example, it does not
necessarily mean that a parent has less than reasonable
timesharing just because he or she spends less time with
the child than under the original timesharing
arrangement.
Id. at 432 (citations omitted).
On the other hand, Layman also makes it clear that the Trial Court
may not simply presume that equal timesharing would be in Child’s best interests
on a motion to modify timesharing. Id. at 431. Here, the DRC did not address the
manner in which granting equal timesharing would be in Child’s best interest.
Moreover, as the moving party for this modification, Father had the burden of
proving that equal timesharing would be in Child’s best interest. See N.B. v. C.H.,
351 S.W.3d 214, 226 (Ky. App. 2011). It is not clear whether the DRC applied an
improper presumption or concluded that the circumstances made equal timesharing
in the Child’s best interests. Because KRS 403.320(3) specifically requires the
latter finding, that question is essential to the judgment. Keifer v. Keifer, 354
-8-
S.W.3d 123, 126 (Ky. 2011) (citing Anderson v. Johnson, 350 S.W.3d 453, 458
(Ky. 2011)). Consequently, we must remand this matter for additional findings on
that issue.
Mother also complains that the Trial Court failed to set out a right of
first refusal even though both parties agreed that it would be appropriate if the
shared custody arrangement continued. Since we are remanding for additional
findings, we need not reach this question.
Lastly, Mother argues that the child tax credit should be allocated
entirely to her if she remains as Child’s primary residential custodian. Again, we
need not reach this question. However, we must point out that the allocation of a
federal tax exemption is not a matter solely within the discretion of the trial court,
but is subject to the Internal Revenue Code and accompanying regulations.
Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 782-83 (Ky. 2015).
Consequently, a trial court must do more than simply look to which parent has the
highest income, or divide the exemptions, or direct the parties to take the
exemption in alternate years. Id. at 784. On the other hand, where both parties
qualify for the deduction, the Trial Court retains the discretion to allocate the
exemption equally if it is in the best interests of the child. Id. at 783-84. See also
Keith v. Keith, 556 S.W.3d 10, 16 (Ky. App. 2018).
-9-
Accordingly, we reverse the order of the Boyd Circuit Court and
remand for additional findings on whether modification of timesharing would be in
Child’s best interests based on the facts and circumstances of this case.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jeffrey D. Hensley Natasha L. Kinnan
Russell, Kentucky Catlettsburg, Kentucky
-10-