APPELLANT v. KENNETH SPARKS APPELLEE (2012)

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

Teresa McCoy has appealed from the order of the Menifee Circuit Court denying her motion to modify the timesharing arrangement between herself and Kenneth Sparks who share joint custody of their minor daughter.   We reverse and remand for further proceedings.

McCoy and Sparks are the biological parents of a minor daughter.   On October 23, 2009, Sparks filed a petition seeking custody of his daughter after the child had been removed from McCoy's physical custody by order of the Menifee District Court.   On March 8, 2010, following a hearing on the matter, the trial court granted the parties joint custody and temporarily designated Sparks as the primary residential parent.   On August 9, 2010, the trial court made the primary residential parent designation permanent and granted McCoy visitation rights with the child.   Based on a pro se request by McCoy, the trial court entered an order on April 27, 2011, which slightly modified the timesharing arrangement with respect to her previously ordered mid-week visitation.

On May 31, 2011, McCoy filed a motion seeking “Timesharing Modification.”   In this four-line motion, McCoy requested an order modifying the timesharing arrangement currently in place and stated the motion was being made due to repeated requests from the minor child for the same.   No response to the motion was filed and the trial court heard the motion on June 9, 2011.

Without taking any testimony, the trial court determined that pursuant to KRS  Double 403.340 it could not modify its custody order entered less than two years earlier.   McCoy specifically informed the court she was not seeking a change in custody but rather an increase in timesharing.   The trial court believed the motion was seeking to change physical custody as it would change where the child would be living.   The trial court stated it was unwilling to uproot the child and have the child change schools as it believed the child needed stability and peace.   McCoy's request for an evidentiary hearing on the matter was summarily denied.   An order comporting with the trial court's oral ruling was entered on July 7, 2011.   This appeal followed.

McCoy contends the trial court erred in finding that the mandates of KRS 403.340 applied to her motion because it was made within two years of the entry of the original custody decree.^Double She contends that since her motion simply sought increased timesharing without a concurrent modification of custody, the provisions of KRS 403.320 should have been applied, and the trial court should have convened a hearing to determine whether such modification was in the best interest of the child.^Double We agree.

In Pennington v. Marcum, 266 S.W.3d 759 (Ky.2008), our Supreme Court addressed the differences in motions to modify custody versus timesharing arrangements and set forth guidance for the proper use of KRS 403.320 and 403.340.   Although Pennington involved a question of the relocation of a parent and the effect such a move would have on custody and timesharing arrangements, the logic set forth is not limited to such situations.   In Humphrey v. Humphrey, 326 S.W.3d 460, 464 (Ky.App.2010), a panel of this Court discussed the ramifications and scope of Pennington.

While a relocation was the particular context in which Pennington was decided, we believe that the intent of our Supreme Court was to establish a distinction between a modification of custody (either from joint custody to sole or split custody, or vice-versa), and a modification of timesharing.   A modification of timesharing maintains the basic custodial framework agreed upon by the parties but changes the amount of time that each parent spends with the child within that framework․  Pennington is clear that this is not a modification of custody, but of timesharing, and we decline to find otherwise herein.

Pennington is clear that motions to modify visitation/timesharing are brought under KRS [Kentucky Revised Statutes] 403.320(3), which permits modification when it “would serve the best interests of the child.”

Based on the guidance of Pennington and Humphrey, we believe KRS 403.320 controls the instant case and the trial court erred in not so finding.

On its face, McCoy's motion sought only to modify the timesharing arrangement between the parties which may be modified at any time upon a proper showing.   See Pennington, 266 S.W.3d at 767.   Nothing in the record indicates McCoy was seeking any additional relief or that she was requesting the court to modify the existing custody order.   Such motions are clearly governed by KRS 403.320.   Because McCoy's motion could not properly be classified as one seeking custody modification, the trial court erred in finding it untimely under KRS 403.340.

Without convening a hearing and taking testimony, the trial court simply could not make the determination that the motion was one to modify custody.   Modifying timesharing does not always “alter the nature of joint custody.”   Pennington, 266 S.W.3d at 768.   The trial court may decide after hearing the testimony that McCoy's request does, in fact, equate to a motion to modify the custody decree, and thus was untimely under KRS 403.340.   It may then enter an appropriate order to that effect.   However, to make such a decision based on the sparse record presented in this appeal was erroneous.

Therefore, the judgment of the Menifee Circuit Court is reversed and the cause is remanded for further proceedings consistent with this Opinion.

ALL CONCUR.

NICKELL, JUDGE: