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Warawa v. Warawa

Court of Appeals of Kentucky

October 18, 2019

JONATHAN M. WARAWA APPELLANT
v.
MICHELYNN D. WARAWA APPELLEE

          APPEAL FROM SHELBY FAMILY COURT HONORABLE S. MARIE HELLARD, JUDGE ACTION NO. 12-CI-00658

          BRIEF FOR APPELLANT: Patrick F. Graney Shelbyville, Kentucky

          BRIEF FOR APPELLEE: Megan P. Keane Louis I. Waterman Prospect, Kentucky

          BEFORE: DIXON, KRAMER AND K. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE

         Jonathan M. Warawa and Michelynn D. Warawa were married on May 12, 2007, and two children were born of the marriage. The present appeal arises from an order of the Shelby Family Court adopting the recommendations, rationale and findings and conclusions of a parenting coordinator. Jonathan alleges that the family court's denial of a hearing on various motions he filed regarding the children's schooling, medical providers and motions to hold Michelynn in contempt for her alleged noncompliance with an order of the family court was an improper delegation of judicial authority and a denial of due process.

         Following the entry of the decree of dissolution on October 17, 2013, the issue of child custody remained unresolved for almost four years. During that time, the parties were enmeshed in litigation regarding the care, custody and control of their children. Emergency protective orders were entered; dependency, neglect and abuse actions were filed; parenting schedules and plans were set forth; depositions were taken; psychological evaluations were performed; multiple custodial evaluations and updates were made; and there were multiple therapists and parenting coordinators involved. During that same time, Jonathan filed bar complaints against counsel and complaints against other professionals with their respective boards. In all, more than 200 pleadings and orders have been filed or entered.

         On August 3, 2017, the parties appeared before the family court and announced they had reached an agreement that resolved all pending motions. At that time, they orally recited their agreement including joint custody of the minor children and that the children would continue to attend Whitefield Academy for the 2017-2018 school year. The parties also agreed that both parties would be consulted prior to any meeting with the children's pediatrician and that neither would make remarks about the other to the children's pediatrician. The parties further agreed that Michelynn would make no allegations to third parties about Jonathan being a sex offender or an abuser. Those provisions were included in the family court's order entered on October 9, 2017. The parties also agreed they would continue to use a parenting coordinator who would have a limited role. In accordance with that agreement, the October 9, 2017 order states:

IT IS FURTHER ORDERED that the parties shall have a Parenting Coordinator who shall have a limited role. Issues of custody and parenting time, other than minor issues such as vacation dates, special occasions, etc., shall be addressed by the Court, it being the desire of the parties to transition away from a Parenting Coordinator. The parties shall move away from the use of a Parenting Coordinator sooner rather than later on the condition that they remain civil in their communications and are able to make decisions on their own.

         One month after the entry of the above order, Michelynn filed a motion to compel Jonathan to pay the parenting coordinator. Jonathan filed a response requesting a hearing on why a parenting coordinator was necessary and objected to issues being delegated to a parenting coordinator without the opportunity to be heard. Without conducting the requested hearing, on November 11, 2017, the family court ordered that the parties submit their outstanding issues to the parenting coordinator. Jonathan filed a motion to reconsider. The family court denied the motion on November 30, 2017, stating that "the parties are in need of a parenting coordinator."

         Subsequently, Jonathan filed motions to move the children from Whitefield Academy to a less expensive school, to change the children's dental provider and for contempt against Michelynn for failing to notify him of the children's medical appointments and Michelynn's discussions of sexual abuse allegations against Jonathan with third parties. He requested a hearing on those matters.

         On December 14, 2017, the family court issued an order stating that "all issues, other than custody and parenting time must go before the parenting coordinator; Therefore, mtns re: insurance and school must be addressed w/parenting coordinator." Jonathan's motions, including his contempt motions against Michelynn, were sent to the parenting coordinator.

         On February 27, 2018, the parenting coordinator submitted recommendations on Jonathan's motions. The parenting coordinator concluded that it was in the children's best interest to remain at their current school. He also found Jonathan's request that the dental provider be changed to one covered under his insurance was reasonable and recommended that the provider be changed. The parenting coordinator found Michelynn's failure to notify Jonathan prior to taking the children to the pediatrician on two separate occasions did not rise to the level of contempt but warned if the pattern continued, a contempt recommendation may follow. Finally, the parenting coordinator found that the statements made by Michelynn to the children's therapist that she believed Jonathan had sexually abused the children were made prior to the entry of the October 9, 2017 order and, therefore, he did not recommend that she be held in contempt. However, the parenting coordinator stated that such behavior in the future could result in contempt.

         Jonathan filed exceptions to the parenting coordinator's recommendations and requested a hearing. The family court denied Jonathan's request for a hearing on his objections to the recommendations reasoning that it was familiar with the parties and the case. The family court accepted the recommendations of the parenting coordinator and adopted those recommendations as an order of the court. This appeal followed.

         Jonathan argues three points of error: (1) the family court erred by appointing a parenting coordinator without making judicial findings and delegating nearly all decisions to him; (2) the family court's refusal to conduct a hearing and reliance on the written recommendations of a parenting coordinator without a hearing denied him access to the court and due process; and (3) the family court delegated issues to the parenting coordinator in violation of its October 9, 2017 order.

         By enactment of Kentucky Revised Statutes (KRS) 23A.100(1) in 2003, the General Assembly vested the family court as a division of the ...


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