Quisenberry v. Quisenberry , 785 S.W.2d 485 ( 1990 )

LEIBSON, Justice.

The principal issue before us is the standard to be applied by the trial court in ruling on a motion to change child custody filed more than two years after the date of the original custody decree. Otherwise stated, the question is whether the statutory requirements in KRS 403.340(2)(c) apply in this case before considering whether “modification is necessary to serve the best interest of the child.” KRS 403.340(2) provides in its entirety:

“If a court of this state has jurisdiction pursuant to the uniform child custody jurisdiction act, the court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of the petitioner with consent of the custodian; or

(c)The child’s present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”

Modification of a custody decree within the first two years after its date is covered by the immediately preceding subsection. Section (1) of KRS 403.340 provides:

“No motion to modify a custody decree may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.”

Thus both subsections, (1) and (2)(c), utilize whether “present environment endangers seriously his physical, mental, moral, or emotional health” as a referent. Nevertheless, the appellant contends that despite this similar language “the presumption in favor of the custodial parent is only intended for the first two years,” and that “after the two year period, it is clearly the best interest of the child standard that should guide the court.” Appellant further contends that even if the “serious danger” standard still applies after the initial two year period, that standard has been misapplied by the trial court in the present case.

Larry and Gertrude Quisenberry were divorced on November 14, 1977. Custody of their son Tommy, then age one, was awarded to the mother. Both parties subsequently remarried, but each appears to be single at this time, with the mother having resumed her maiden name, Oex-mann.

On November 17, 1986, ten years after the date of the custody decree, Larry filed a motion to modify custody. There had been extensive bickering over child support and visitation in the interim. Eventually, after a hearing and ruling against Larry’s motion by a domestic relations commissioner, on January 6, 1988, Fayette Circuit Court denied modification of the custody decree. Although exceptions and other post-judgment motions were filed, there has been no appeal as such from this initial order.

Thereafter, on April 21, 1988, Larry moved the court to reopen the motion to modify custody, and he filed further supporting affidavits from himself and son, Tommy, and an affidavit from Dr. Stuart A. Cooke, Ph.D. Dr. Cooke was originally a court appointed psychologist. His previous report was considered as part of the evidence originally deemed insufficient to support a motion to modify custody. Dr. Cooke’s new affidavit attached and incorporated by reference a report to the appellant’s lawyer which had been prepared following a visit on February 26, 1988 by Tommy and his father to Dr. Cooke’s office. This affidavit concludes:

“The child’s present environment with his mother endangers¹ his emotional health, in my professional opinion, and the harm likely to be caused by a change of environment is outweighed by its advantages to him, and therefore, the custody of this child should be transferred to the father.”

In an order dated May 23, 1988, the trial court denied the appellant’s motion to reopen custody. Further, the court orders:

“If the Respondent [appellant] again moves the Court to reopen the custody issue he shall pay $5,000 toward Petitioner’s [appellee's] attorney fees previously incurred and shall pay costs and attorney fees incurred by Petitioner in response to a new motion.”

We will not attempt to cover evidentiary details in this opinion. Suffice it to say that the evidence more than supports the findings of the trial commissioner and the trial court that the child’s present environment does not endanger seriously the child’s physical, mental, moral, or emotional health.

The initial report from the child psychologist suggests that the child is doing surprisingly well considering the hostility between the parents and their inexcusable manipulative behavior. The subsequent visit to the psychologist and report followed from an obvious effort to bolster the case. The principal reason behind the psychologist’s conclusion that “Tommy is going to be far better off with his father at this point than with his mother,” is that “Tommy is mature enough and intelligent enough to have some major imput [sic] into the decision as to where he should live.” The trial court found no significant new evidence. The record fails to establish that the trial court’s decision not to reopen the case was clearly erroneous. On the contrary, a close reading of this new report confirms that the major cause of Tommy’s difficulties are “the differences between” the parents. The trial court stated “a danger to the child arises from respondent’s [appellant’s] efforts to change the custody of the child. The child’s situation needs to be stabilized.” Such conclusions were not clearly unreasonable.

The appellant maintains that a motion for change of custody filed more than two years after the date of the custody decree should be adjudicated solely on the basis of the best interest of the child. But the language of the over and under two years subsections are substantially the same. Both subsections pose the question whether the “child’s present environment endangers seriously his physical, mental, moral, or emotional health.”² KRS 403.-340(2)(c) adds as a further consideration whether “the harm likely to be caused by a change of environment is outweighed by its advantages to [the child],” in deference to the need for stability in the over two years situation. Subsection (2) further requires “a change ... in the circumstances of the child or his custodian.” It is obvious the provisions of this subsection intend to inhibit further litigation initiated simply because the noncustodial parent, or the child, or both, believe that a change in custody would be in the child’s best interest.

Appellant has misinterpreted the holding in S v. S, Ky.App., 608 S.W.2d 64 (1980), of which we approve. S v. S states “the purpose of KRS 403.340(1) is to provide stability and finality to a custody decree.” This does not imply the same “purpose” cannot be found in subsection (2). The differences between subsections (1) and (2) are procedural, and arise to accommodate circumstances inherent in the passage of time.

Thus subsection (1) of 403.340 specifies that “[n]o motion to modify a custody decree may be made earlier than 2 years after its date, unless the court” deems it justified “on the basis of affidavits” presented. On the other hand, subsection (2) permits such a motion and a hearing without need of a preliminary determination, but requires proof “that a change has occurred in the circumstances of the child or his custodian.” Both subsection (1) and (2) require a situation that may “seriously endanger” the child and both quite obviously express the legislative intent to stabilize the child’s condition and inhibit further litigation over his custody unless the child is in serious danger.³

The appellant refers us to the prefatory phrase in subsection (2), “[i]f a court of this state has jurisdiction pursuant to the uniform child custody jurisdiction act ...,” and suggests this means the subsection does not apply to cases reopened in the same court where the custody order originated. The Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), KRS 403.400-.630, is not so limited. It applies to all cases, regardless of whether the custody order originated with the court now asked to consider a change of custody, or originated elsewhere. By its terms a court entering an original custody decree may be required to refuse jurisdiction of a subsequent motion to change custody because of the child’s present living arrangements and place of residence. Thus, the U.C.C.J.A. is a threshold consideration in every case, and the prefatory reference to it in KRS 403.-340(2) does no more than make clear that when a court is asked to entertain a change of custody case it shall not do so unless the circumstances covered by the U.C.C.J.A. are present.

Next, appellant points to KRS 403.-350 as support for his argument. KRS 403.350 requires a “party seeking a temporary custody order or modification of a custody decree” to submit an affidavit with his motion “setting forth facts supporting the requested order or modification.” It is not a substitute for KRS 403.340(2), as the appellant contends, but simply a procedural device establishing the method for bringing such a motion before the court. The existence of this procedure does not provide a vehicle to discard KRS 403.340(2)(c) and utilize the best interest rule as the sole standard for deciding' a change of custody issue. Were we so disposed, we could not ignore the statutory mandate in KRS 403.-340(2)(c) to consider first whether “[t]he child’s present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment if outweighed by its advantages to him.” As the Court of Appeals stated in Wilcher v. Wilcher, Ky.App., 566 S.W.2d 173 (1978), the obvious purpose of both KRS 403.350 and .340 is to place the burden of proof on the parents seeking to modify custody, to encourage stability in the custodial relationship.

A key factor in the emotional health of a child is the level of tension between the mother and father. A parent truly concerned with the best interest of his child will work to reduce the level of this tension, after a divorce as well as during the marriage. Litigation is counterproductive to this end, and the statutes were structured to discourage a post-judgment litigation except where a party seeking to change custody can first cross one of the thresholds establishing KRS 403.340.

Twice recently we have rejected similar attempts to replace statutory thresholds designed to protect a parent’s custodial relationship with a battle over the best interest of the child. In Davis v. Collinsworth, Ky., 771 S.W.2d 329 (1989) and Engle v. Jewell, Ky. (unpublished, rendered 2/8/90), we upheld the statutory principle in KRS 405.020 that a court would not award custody to a nonparent over the rights of a parent unless it was first proved that the parent was unfit (“unsuited to the trust”), even when to do so might be in the best interest of the child. Thus, under circumstances somewhat similar to the present case, while recognizing the importance of the best interest of the child standard, we respected the statutory mandates of the General Assembly providing for other considerations which the legislature deems equally important. We are not free to disregard such further considerations, even were we so inclined.

It is necessary to reverse that portion of- the trial court’s order imposing a $5,000 penalty in the event “the respondent again moves the court to reopen the custody issue.”

Paragraph 3. of the court’s order states:

“If the Respondent again moves the Court to reopen the custody issue he shall pay $5,000 toward Petitioner’s attorney fees previously incurred and shall pay costs and attorney fees incurred by Petitioner in response to a new motion.”

Subsection (3) of KRS 403.340 provides:

“Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.”

Under this subsection the trial court has the power to assess attorney fees and costs at the conclusion of litigation which he finds “is vexatious and constitutes harassment.” In this instance the trial court failed to do so. The appellee cross-appealed to the Court of Appeals on this issue, but obtained no relief, and the appellee has failed to further pursue this matter by cross-motion for discretionary review.

Therefore, the only issue before us is the validity of an order referring to potential future litigation. In the circumstances of this case, we, like the Court of Appeals, may appreciate the reasons for the trial court’s order imposing a penalty for future litigation, but the court is not free to prejudge the next motion as vexatious and harassing, even if there is reason to believe such may be the case based on what has taken place thus far.

Therefore, we affirm the trial court and the Court of Appeals except as to that portion of the trial court’s final order relating to attorney fees in the event of future litigation.

STEPHENS, C.J., and COMBS, GANT and VANCE, JJ., concur. WINTERSHEIMER, J., concurs by separate opinion. LAMBERT, J., dissents by separate opinion.

1 . We note that neither the affidavit nor report concludes "serious" danger, the statutory term in KRS 403.340(2)(c).

2 . Subsection (1) states "may endanger" rather than "endangers.” Present and potential danger, if serious, are appropriate considerations in either instance, whether over or under two years after the initial custody decree.

3 . Under subsection (2) the court may also change custody if the "custodian agrees to the modification” or the "child has been integrated into the family of the petitioner with consent of the custodian."