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Agnich v. Tyler

Court of Appeals of Kentucky

May 5, 2017

JAN MARIE AGNICH APPELLANT
v.
LADONNA KAY TYLER APPELLEE

         APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KATHY STEIN, JUDGE ACTION NO. 13-CI-02538

          BRIEF FOR APPELLANT: Anna L. Dominick Lexington, Kentucky.

          BRIEF FOR APPELLEE: Martha A. Rosenberg Lexington, Kentucky.

          BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES.

          OPINION VACATING AND REMANDING

          JONES, JUDGE.

         Jan Agnich appeals from an Order of the Fayette Circuit Court granting LaDonna Tyler's Motion to Modify Timesharing, permitting her to relocate with the parties' two minor children to another state. For the reasons set forth below, we vacate and remand for additional proceedings.

         I. Background

         Appellant, Jan Marie Agnich ("Jan"), and Appellee, LaDonna Kay Tyler ("LaDonna"), were in a committed same-sex relationship for thirteen years. During that time, they decided to begin a family together. After several rounds of in vitro fertilization, LaDonna became pregnant with twins, who were born on June 23, 2010, and are now six years old. The parties resided with the children in Jan's Lexington home as a family until May of 2015.

         Just prior to the birth of the twins, both Jan and LaDonna signed Wills and related estate planning documents. In her Will, LaDonna specifically directed that Jan is to be the guardian of any children she may have. LaDonna's Will states: "I specifically do not want my parents . . . or my brother . . . to be the guardian of any minor child(ren) of mine." LaDonna also signed a "Nomination of Guardian for Estate and Person of a Minor Child" for both children, expressing her desire for Jan to care for the children in the event she became unable to do so. The Nominations further stated that, in the event Jan could not care for the minor children, LaDonna designated Jan's sister.

         In May 2013, both children were diagnosed with autism at Cincinnati Children's Hospital. After the diagnosis, the parties applied for and received a state Medicaid grant to provide caregivers for the children. Approximately a month later, Jan filed a Verified Petition for Custody. On that same day, LaDonna filed an Affidavit and Consent to Custody. The parties jointly decided and agreed upon this course of action to ensure Jan would have legal parental rights in the event any issues occurred later on in their relationship. An Agreed Final Order on Custody and Timesharing was entered on July 18, 2013. Therein, the court determined that awarding joint custody of the children to Jan and LaDonna was in the best interests of the minor children.

         The parties also entered into a "Shared Custody Agreement" on August 21, 2013. The Agreement provides that the parties "intend this Agreement to guide a Court in determining our respective rights." The Agreement further provides that in the event the relationship ends, each party will share in the expenses for the minor children, and that they "agree that each of us will make a good faith effort to remain in the school district where the children are attending school until the youngest child completes high school."

         In November 2014, the parties ended their romantic relationship. Thereafter, the parties participated in mediation, which resulted in their agreement to an equal timesharing schedule under which Jan had the children every Wednesday and Thursday and every other weekend. The parties abided by their 2013 Shared Custody Agreement with regard to the sharing of expenses and maintaining equal timesharing. The issue of relocation was reserved for further discussion or order of the court. LaDonna moved out of Jan's home following the mediation agreement.

         On August 10, 2015, LaDonna filed a "Motion to Modify Timesharing and Relocate the Minor Children Out of State" requesting to move to the St. Joseph, Missouri area. LaDonna included an affidavit with her motion. Therein, she averred as follows:

4. The Affiant is engaged to be married to her childhood sweetheart, Mike Gilmore, on April 2, 2016. It is the Affiant's desire to relocate with the children to the St. Joseph, Missouri area to be closer to her family and her fiancé. The Affiant is looking for a home to purchase in Missouri which would place the children in the Oak Grove Elementary School district, which is a new school, in a nice neighborhood and is able to accommodate the children's special needs, as both children are autistic. Oak Grove Elementary has specialized instruction for children identified with Autism, including picture exchange communication systems, discrete trial training, sensory integration, applied behavior analysis and a focus on language development. The school has designated teachers who specialize in teaching children with Autism.
5. During their partnership Jan worked at Toyota and Affiant worked as a licensed clinical social worker for the Home of the Innocen[ts]. Jan was required to work significant hours, including overtime hours in her position as a group leader. The Affiant's job and work hours were much more flexible and therefore Affiant was the parent who took time from work to care for the children when it was necessary to do so. Neither party has family ...

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