Opinion
NO. 2012-CA-001068-MR
06-28-2013
BRANDI R. TACKETT APPELLANT v. TIMOTHY A. TACKETT APPELLEE
BRIEF FOR APPELLANT: Kimberly H. Compton Louisa, Kentucky BRIEF FOR APPELLEE: Sean Perdue Louisa, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAWRENCE CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 09-CI-00072
OPINION
VACATING AND REMANDING
WITH DIRECTIONS
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Brandi R. Tackett brings this appeal from a May 15, 2012, Order of the Lawrence Circuit Court, Family Court Division, (family court) concluding that Timothy A. Tackett was not in arrears for failure to pay child support or maintenance. We vacate and remand with directions.
Brandi and Timothy were married on August 8, 1998. One child was born of the parties' marriage on July 21, 2000. The parties were divorced by decree of dissolution of marriage entered December 21, 2009. The decree awarded the parties joint custody of their son, and Brandi was designated primary residential custodian. Timothy was ordered to pay Brandi child support of $242 per month and to "pay the utilities for the residence of [Brandi] for the next three years in lieu of maintenance." Relevant to this appeal, on December 22, 2011, Brandi filed motions seeking to have Timothy held in contempt for his failure to pay child support and maintenance. Following a hearing, an order was entered May 15, 2012, denying Brandi's motions. In its entirety the May 15, 2012, order states:
This matter having come before the Court for Show Cause Hearing, and the Court being otherwise sufficiently advised;This appeal follows.
IT IS HEREBY ORDERED that upon review of the Notice of Filing by the Petitioner's Counsel, the Court concludes that the Petitioner has shown proof of payment of Child Support and Maintenance as previously ordered by the Court and, therefore, the Motion For Contempt is OVERRULED.
Brandi contends that the family court erred in its determination that Timothy paid in full his child support and maintenance obligations that were owed at the time of the May 2012 hearing. Brandi specifically asserts that the evidence Timothy supplied as proof of payment was inadequate and did not negate the entire arrearage amount.
Upon conducting an evidentiary hearing on a post-decree child support dispute, the family court is required to comply with Kentucky Rules of Civil Procedure (CR) 52.01. CR 52.01 requires that a court acting without a jury must make specific findings of fact. CR 52.01 provides, in relevant part:
In 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; . . . . Requests for findings are not necessary for purposes of review except as provided in Rule 52.04. Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . .
In applying CR 52.01, the former Kentucky Court of Appeals, the predecessor to the Kentucky Supreme Court, addressed this very issue in Elkins v. Elkins, 359 S.W.2d 620 (Ky. 1962), after the adoption of CR 52.01. In Elkins, a woman attempted to modify a child support agreement that had been entered into with the father of the children in conjunction with the divorce. The circuit court denied the mother's motion to modify the child support agreement. In reversing the circuit court by applying CR 52.01, Judge Palmore made the following eloquent observation regarding the necessity of findings of fact in post-decree child support modification proceedings:
The order from which this appeal is taken neither contains findings of fact nor discloses the basis on which the trial court's decision was made. This is unfortunate,Elkins, 359 S.W.2d at 622.
for a losing party ought not to be deprived of a proper review by the court's failure to record its specific rulings of law and fact. By its failure to conform with CR 52.01 a record that leaves us in the dark in this respect inevitably conduces to a substitution of our own judgment for that of the trial court.
Where evidentiary proceedings are conducted in post-decree matters, the purpose of the mandatory findings of fact in CR 52.01 is to provide a clear record of the basis of the trial court's decision thereby allowing a reviewing court to easily understand the trial court's view of the controversy. Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986). Simply put, a trial "judge must make findings of fact and not address the matter in a perfunctory manner." Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). The failure of the trial court to make any findings of fact is violative of CR 52.01 and may be raised on appeal even without requesting additional findings per CR 52.04. Id. See also Brown v. Shelton, 156 S.W.3d 319 (Ky. App. 2004).
In the case sub judice, the family court conducted a hearing, and following the hearing, the family court rendered its May 15, 2012, order. In its order, the family court concluded that Timothy was not in arrears as to child support or maintenance and, thus, denied Brandi's motion for contempt. This conclusion of law as set out in the order was devoid of any findings of fact in support thereof. As the family court failed to "find the facts specifically," it violated its duty under CR 52.01 to do so. Consequently, we are compelled to vacate and remand with directions that the family court render findings of fact in its order as mandated by CR 52.01. See Anderson, 350 S.W.3d 453. Thus, we vacate the family court's order of May 15, 2012, and remand to the family court with directions that it render an order with findings of fact per CR 52.01.
For the foregoing reasons, the Order of the Lawrence Circuit Court, Family Court Division, is vacated and this case is remanded with directions.
MOORE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Kimberly H. Compton
Louisa, Kentucky
BRIEF FOR APPELLEE: Sean Perdue
Louisa, Kentucky