Request By:
Mr. Warren N. Scoville
Lewis and Scoville
Lewis Building
105 West Fifth Street
London, Kentucky 40741
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David M. Whalin, Assistant Attorney General
According to our telephone conversation the question you pose has been an actual subject of controversy and is not merely a hypothetical inquiry. Furthermore, you reiterated that litigation is not pending on this issue.
The question is whether temporary relief may be obtained pursuant to CR 65.03 from a custody decree upon proper motion pending the outcome of a change of custody procedure. Objection to the use of CR 65.03 is based upon the position that a change of custody is a post-judgment procedure.
The dispute resolves itself into a question of the nature of a "permanent" custody order. Once this is established your question may be properly addressed.
A custody decree is a "final judgment" as to the facts adjudicated. KRS 403.340 only allows modification upon facts not known to the court at the time of the decree or upon certain subsequent changes which place the child in danger. The clear wording of the statute makes a custody award final and subject only to a limited attack. In this sense it has the appearance of the usual civil, final judgment.
Kentucky, however, has treated a custody award as being "interlocutory" in character and subject to resurrection. In Weightman v. Hamilton, Ky., 261 S.W.2d 680, 681 (1953), the Court of Appeals (now Supreme Court) stated:
[t]he award of custody of a child entered in a divorce decree is of a provisional or interlocutory character for it is not final in the sense that the case is terminated or that the judgment precludes modification thereafter during the minority of the child if its welfare demands it.
The Court went on to note that jurisdiction
The Court went on to note that jurisdiction continued in the court rendering the decree. Although a case may not be (and need not be) retained on the docket books of the court, it remains "in" that court through legal and statutory metaphysics.
The "dead" case is subject to "resurrection" in limited circumstances as delineated in KRS 403.340. Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976).
An action for a custody modification is not a "new" action or a "post judgment" action but a limited resurrection of the original action since the original action has continued "in" the court's jurisdiction though in hibernation.
With this background, we may now address your question. A custody modification is simply a part of a pending action, albeit one in hibernation. CR 65.03 authorizes a restraining order "at the commencement of an action, or during the pendency thereof" in certain circumstances. Thus CR 65.03 will apply to a custody modification if the limited circumstances (KRS 403.340) are present which allow the "pending" action to come out of hibernation.
It has been assumed that the requirements of KRS 403.260 (1976) have been met during the course of this opinion.