Johnathan Charles Ahlf v. Kristen Nicole Ahlf ( 2021 )

RENDERED: DECEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0376-MR
JOHNATHAN CHARLES AHLF APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
v. HONORABLE DAN BALLOU, JUDGE
ACTION NO. 17-CI-00597
KRISTEN NICOLE AHLF APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
McNEILL, JUDGE: Appellant, Johnathan Charles Ahlf (“Johnathan”), appeals the
Whitley Circuit Court’s order restoring joint custody and equal parenting time in
favor of the Appellee, Kristen Nicole Ahlf (“Kristen”). After careful review of the
record and law, we vacate and remand the matter for entry of written findings of
fact and conclusions of law.
Johnathan filed a petition for dissolution of marriage in the Whitley
Circuit Court on October 6, 2017. The trial court entered a decree of dissolution of
marriage following a property settlement agreement between Johnathan and
Kristen, leaving only the issues of child custody and parenting time to be decided
by the court. Thereafter, the trial court scheduled a final hearing on those issues
for April 18, 2019 before a domestic relations commissioner (DRC).
At the hearing, the DRC heard testimony from Johnathan, Kristen,
two of their minor children, and the family’s counselor, William Stevens.
Johnathan testified to specific instances in which he alleged Kristen was physically
and verbally abusive of both him and the children. Through their testimony, the
two children largely corroborated Johnathan’s allegations of abuse by Kristen.
Stevens testified that the children had reported to him specific instances of physical
and verbal abuse by Kristen against Johnathan and instances of neglect by Kristen
against the children. Stevens also testified that each of the children had asked him
to recommend that they primarily reside with Johnathan. In Kristen’s testimony,
she denied any allegation that she had ever been abusive to Johnathan or the
children.
The DRC continued the matter for further proceedings, leaving in
place a prior court order designating Johnathan as the children’s primary
residential guardian, and granting Johnathan custody of the children, subject only
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to Kristen’s right to supervised visitation. On August 22, 2019, the DRC held
another evidentiary hearing in which testimony was heard from the family
therapist, S. Joan Nantz, Ph.D. Dr. Nantz testified that the children had conveyed
to her their fear of living with Kristen. She also testified that she believed
Kristen’s visitation time with the children should remain supervised.
The Whitley Circuit Court held an additional evidentiary hearing on
September 26, 2019 in which the court heard testimony from Kristen’s oldest
biological son, Johnathan Hunter Ahlf (“Hunter”).1 Hunter’s testimony
corroborated previous testimony of specific instances in which Kristen was alleged
to have been physically and verbally abusive of Johnathan and the children.
During the September 26 hearing, the trial court expressed its belief that applicable
statutes and the statutory preference for joint custody obligated the court to
eventually grant joint custody and equal parenting time.
The trial court held a final evidentiary hearing on December 17, 2019.
There, the court heard testimony from Kristen’s personal counselor, Janice Grentz.
Grentz recommended that Johnathan and Kristen be awarded equal parenting time.
Stevens also testified at the hearing, largely restating his prior testimony and
reiterating his recommendation that Kristen’s parenting time be limited to a right
of supervised visitation pending the completion of additional individual and family
1
Hunter was 16 years old at the time of the hearing, but he has since reached the age of majority.
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therapy. At the conclusion of the evidence at the hearing, the trial court gave an
oral ruling from the bench granting joint custody, ordering equal parenting time,
and directing the parties to continue counseling. The court also instructed
Kristen’s counsel to tender an order reflecting the court’s ruling.
On December 18, 2019, the trial court adopted the written order
drafted by Kristen’s trial counsel which granted joint custody and ordered equal
parenting time between the parties. Johnathan filed a motion to alter, amend, or
vacate, pursuant to Kentucky Rules of Civil Procedure (CR) 59.05, arguing the
trial court’s written order did not sufficiently detail the court’s findings of fact as
required by CR 52.01. The trial court denied Johnathan’s motion, and he now
appeals.
On appeal, Johnathan argues that the trial court failed to enter a
written order issuing its factual findings and legal conclusions in support of its
decision to grant joint custody and equal parenting rights to Johnathan and Kristen.
Johnathan claims he preserved this error for review when he raised the issue at the
December 17, 2019 evidentiary hearing, filed his CR 59.05 motion, and tendered
his own proposed findings of fact in a supplemental memorandum to that motion.
CR 52.01 provides that “[i]n all actions tried upon the facts without a
jury or with an advisory jury, the court shall find the facts specifically and state
separately its conclusions of law thereon and render an appropriate judgment[.]”
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Moreover, a court speaks only through its writings entered on the record.
Commonwealth v. Hicks, 869 S.W.2d 35, 38 (Ky. 1994), overruled on other
grounds by Keeling v. Commonwealth, 381 S.W.3d 248 (Ky. 2012). Therefore, we
may only consider findings of fact and conclusions of law that have been
specifically incorporated into a written order entered on the record. Kindred
Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010);
see also Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012).
The Kentucky Supreme Court has further emphasized the importance
of the trial court’s making written findings on the record in family law matters.
“CR 52.01 requires that the judge engage in . . . fact-finding and that the found
facts be included in a written order.” Anderson v. Johnson, 350 S.W.3d 453, 458
(Ky. 2011). The Court reiterated this holding in Keifer v. Keifer:
We again state with emphasis that compliance with CR
52.01 and the applicable sections of [Kentucky Revised
Statutes (KRS)] Chapter 403 requires written findings,
and admonish trial courts that it is their duty to comply
with the directive of this Court to include in all orders
affecting child custody the requisite findings of fact and
conclusions of law supporting its decisions.
Consideration of matters affecting the welfare and future
of children are among the most important duties
undertaken by the courts of this Commonwealth. In
compliance with these duties, it is imperative that the
trial courts make the requisite findings of fact and
conclusions of law to support their orders.
354 S.W.3d 123, 125-26 (Ky. 2011).
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The written order tendered by Kristen’s counsel and adopted by the
trial court contained no proposed factual findings or mention of the statutory
considerations relative to child custody required by KRS Chapter 403. Therefore,
the reasoning of the Kentucky Supreme Court in Anderson and Keifer applies
squarely in this case. We are aware of no authority abrogating the requirements of
Anderson and Keifer in child custody matters. The trial court’s December 18, 2019
order does not meet those requirements.
The failure of the trial court to include its factual findings in a written
order “allows an appellate court to remand the case for findings[.]” Anderson, 350
S.W.3d at 458. Accordingly, we remand this matter for the entry of written
findings of fact and conclusions of law. Because we remand for procedural
reasons, we do not reach and do not address the merits of Johnathan’s substantive
arguments on appeal.
For the foregoing reasons, we vacate the Whitley Circuit Court’s
December 18, 2019 order and remand this matter “with specific directions to enter
an order that properly reflects in writing that court’s findings of fact and
conclusions of law based upon the evidence that was presented at the hearing[s]
previously held.” Keifer, 354 S.W.3d at 127.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Louis P. Winner John A. Combs
Louisville, Kentucky London, Kentucky
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