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Keith v. Keith

Court of Appeals of Kentucky

July 27, 2018



          BRIEF FOR APPELLANT: Dustin C. Humphrey, Radcliff, Kentucky

          BRIEF FOR APPELLEE: John Nelson Nicholas, Elizabethtown, Kentucky



          MAZE, JUDGE:

          Jolie Keith appeals from a judgment of the Meade Circuit Court concerning the dissolution of her marriage to Toby Keith. Jolie takes issue with the sufficiency of the factual findings adopted by the trial court, particularly with respect to the court's award of joint custody of their children. Jolie also argues that the trial court erred by excluding child-care costs from its support order, by allocating the children's tax exemption to Toby, and by awarding both marital vehicles to Toby. We agree with Jolie that the trial court failed to make sufficient factual findings supporting the conclusion that awarding the tax exemption to Toby would be in the best interests of the children. We further agree with Jolie that the court's award of both vehicles to Toby amounted to an abuse of discretion. However, we find no error or abuse of discretion as to the other issues. Hence, we affirm in part, reverse in part, and remand for additional findings and entry of a new order.

         I. Facts and Procedural History

         Toby and Jolie Keith were married in 2011 and separated on November 25, 2015. They have three children born during the marriage. On December 10, 2015, Jolie filed a petition seeking dissolution of the marriage. The trial court entered a limited decree on November 14, 2016, (as amended on December 15, 2016, to reflect a correct date of separation) which reserved issues of custody, child support, maintenance, and division of marital property for later adjudication. The trial court referred these issues for hearings before the Domestic Relations Commissioner (DRC). The DRC issued her report on May 18, 2017.

         In pertinent part, the DRC recommended joint custody of the children with equally divided physical custody. Based on the equal parenting time, the DRC recommended a deviation from the Child Support Guidelines. But since Toby earns 76% of the parties' combined income, his share of support came to $650 a month. The DRC also recommended dividing the children's health care expenses in accordance to their relative contributions to the combined income. Based on his greater income and contribution, the DRC recommended allocating the child tax exemptions to Toby. However, the DRC stated that child-care costs would be borne by the party who chooses to use child care during his or her parenting time.

         With respect to the property division, the DRC recognized that the parties engaged in a bankruptcy shortly before separating. The only remaining debt was owed for a 2014 Toyota Sienna van that was in Toby's possession. Most of the van's value is encumbered by its debt. Jolie had possession of a 2002 Ford Explorer Sport Trac that has no debt. However, Jolie stated that it was of limited utility and her parents currently provided her with the use of a vehicle. The DRC recommended awarding both vehicles and the debt to Toby. The DRC also recommended equally dividing Toby's pension plan.

         Both parties filed exceptions to the DRC's report. After considering her objections and Toby's response, the trial court entered an order on July 5, 2017. The court sustained Toby's exception to the equal division of his pension plan and directed that the plan be divided pursuant to the Poe[1] formula. However, the court overruled the remaining objections and adopted the remainder of the DRC's recommendations. Jolie now appeals from this order.

         II. Adoption of tendered order

         As an initial matter, Jolie takes issue with the DRC's adoption of the findings and conclusions tendered by Toby's counsel. She contends that the DRC and the trial court failed to comply with their obligations to make their own findings as required by CR[2] 52.01. Jolie relies heavily on Retherford v. Monday, 500 S.W.3d 229, 232 (Ky. App. 2016), in which a panel of this Court questioned the propriety of adopting tendered findings in an action brought under KRS[3]Chapter 403. A majority of the panel held that a trial court is required to draft its own factual findings in matters involving child custody and should not merely adopt factual findings and conclusions tendered by one of the parties. Id. at 232.[4]

         However, in Bingham v. Bingham, 628 S.W.2d 628, 628-30 (Ky. 1982), the Kentucky Supreme Court rejected the notion that a trial court is prohibited from adopting proposed findings tendered by a party. Id. at 629. An appellate court will affirm an order supported by substantial evidence in the absence of a showing that "the decision-making process was not under the control of the judge" or "that these findings and conclusions were not the product of the deliberations of the trial judge's mind." Id. at 629-30. Our Supreme Court reiterated this point in Prater v. Cabinet for Human Res., 954 S.W.2d 954, 956 (Ky. 1997).

         The Supreme Court has not overruled Bingham or Prater. To reach a contrary conclusion, Retherford relied in part on Keifer v. Keifer, 354 S.W.3d 123, (Ky. 2011). But Keifer merely held that KRS Chapter 403 and CR 52.01 require that trial courts include all necessary factual findings in a written order. Id. at 125. To the extent that Retherford holds that adoption of tendered findings is automatically grounds for reversal, this holding conflicts with directly controlling precedent from our Supreme Court.[5]

         In the current case, the DRC substantially adopted the proposed findings tendered by Toby's counsel. However, the DRC did so after a full evidentiary hearing. Moreover, those findings were subject to a full review by the trial court prior to their incorporation into the final order. We find no basis to conclude that the DRC or the trial court abdicated their responsibility to make required findings of fact and conclusions of law in this case.

         III. Award of Joint Custody

         Jolie next argues that the trial court failed to consider claims of domestic violence and neglect in granting of joint split physical custody of the children. On appeal, we will only disturb a trial court's custody order if its factual findings are clearly erroneous. CR 52.01. (See also Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982)). Our Supreme Court has further stated that:

[s]ince the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court's decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it ...

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