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RENDERED: JULY 29, 2011; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-000083-ME ELIZABETH BLANCHE FORTENBERRY APPELLANT

v.

APPEAL FROM CALLOWAY FAMILY COURT HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE ACTION NO. 07-CI-00557

CORY MICHAEL READ

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, LAMBERT, AND VANMETER, JUDGES. LAMBERT, JUDGE: Elizabeth Blanche Fortenberry has appealed from the Calloway Family Court's October 1, 2010, order modifying timesharing and designating her former husband, Cory Michael Read,1 as the primary residential parent of their minor daughter. Having carefully considered the record and the parties' arguments in their briefs, we affirm the family court's judgment.
1

While the body of the notice of appeal lists Reed as the appellee's last name, the record establishes that the correct spelling is Read, which we shall use in this opinion.

Elizabeth and Cory were married in Murray, Calloway County, Kentucky on October 16, 2004. One child, a daughter named Morgan Read (the child), was born of the marriage on March 26, 2005. The parties separated on March 31, 2007, following Elizabeth's return from active duty in Iraq, and Cory filed a petition for dissolution on December 26, 2007. Cory requested that he and Elizabeth be awarded joint custody of the child, that he be named the primary residential parent, and that Elizabeth be ordered to pay child support. He also requested an equitable division of marital property and debt, as well as the restoration of non-marital property. At the time he filed the petition, Cory was a full-time student at Murray State University and worked part-time for the university as a stockroom employee. Elizabeth was unemployed. In January, Cory filed with the court a letter he received from Elizabeth indicating that she disagreed with the custody requested and disputed the date of separation, claiming that they separated in June 2006 before she was deployed overseas. She also indicated that she intended to hire an attorney. In September 2008, the parties reached an agreement as set forth in the Marital Settlement Agreement. The necessary proof to support the petition for dissolution was filed with the court via Cory's deposition upon written questions. In the deposition, Cory indicated that Elizabeth had moved to Irvington, Kentucky and was employed by the National Guard earning $1,300.00 per month. The family court adopted the parties' agreement in its findings of fact, conclusions of law, and decree of dissolution entered September 24, 2008. Pursuant to the terms -2-

of the agreement, the parties were awarded joint, shared custody of the child, and she was to spend approximately six months per year with each parent pursuant to a schedule set forth in the agreement. They also agreed that neither party would be required to pay child support but that they would split the child's school and daycare expenses. The agreement provided that the custody and visitation schedule was to be reviewed once the child was ready to enter kindergarten. On August 11, 2010, Elizabeth filed a motion to modify the timesharing schedule, set child support, and for reimbursement of expenses. By this time, the child was ready to enter kindergarten, so that by the terms of the agreement the matter was ripe for review. In her motion, Elizabeth indicated that Cory had relocated to South Carolina. Furthermore, she stated that the parties had not abided by the terms of their agreement, as the child had spent the majority of her time with Elizabeth. Because both she and Cory worked and attended school, and they resided a great distance from one another, Elizabeth requested that she be named the child's primary residential parent and that Cory be permitted visitation in accordance with the guidelines for long distance situations. She stated that she was the fit and proper person to have primary care of the child. If granted, Elizabeth requested child support. Finally, Elizabeth requested reimbursement for the child's school and daycare expenses pursuant to their agreement. Elizabeth attached an affidavit in support of the motion. In response, Cory first moved to continue the hearing on the motion. He stated that he was enrolled in a doctorate program at the University of South -3-

Carolina in Columbia, South Carolina. Cory had enrolled the child in school in Columbia, but Elizabeth had refused to return the child to him at the end of her summer visitation period when he went to pick her up in Kentucky. Pursuant to the terms of their agreement, Cory was supposed to get the child back the day before school started, which was scheduled to begin on August 18, 2010. Cory also filed a motion for a rule related to Elizabeth's refusal to give the child back to him, but that motion was later withdrawn when Elizabeth turned the child over to Cory during the evening of August 18, 2010. As grounds for his motion to continue the hearing, Cory indicated that he had served interrogatories and requests for production of documents on Elizabeth seeking information regarding her history of mental problems, medical background, and her having placed other children up for adoption. The court continued the hearing until September 29, 2010. The day of the hearing, Cory filed a response to Elizabeth's motion as well as a counter-motion requesting to be named the primary residential parent. In his filing, Cory began with the statement that Elizabeth had been more tuned in to her own needs than the child's needs over the last three years. She had lived apart from the child for extended periods, although Elizabeth was primarily responsible for raising and supporting the child while he was completing classes at Murray State and during his first semester at USC. Cory stated that the child had lived primarily with him from June 2006 to October 2007 while Elizabeth was on active duty in Iraq and Kuwait as well as upon her return when she lived with other -4-

people and sought treatment for her mental health problems. The child had also been in his primary care since January 2010. For his counter-motion, Cory stated that the child was established in his household and had been in his primary custody for an overwhelming period of time, other than while he was in school. Therefore, Cory requested that he be named the primary residential parent. The family court held an evidentiary hearing on September 29, 2010, where both parties were able to testify and call other witnesses. Elizabeth testified that she was on active duty in Iraq from September 2006 until late February 2007, when she came home on leave and stayed. She and Cory ended their relationship upon her return, and she moved to the Ft. Knox area where she would be more likely to find a job so that she could take care of the child. At the time of the hearing, she lived in a three-bedroom house in Elizabethtown with her fianc

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