Commonwealth of Kentucky Court of Appeals

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1 RENDERED: JUNE 16, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA ME GAVIN SCHILLING APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 09-CI ERIN MONAHAN APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Gavin Schilling appeals an order of the Jefferson Circuit Court denying his motion to terminate the court s appointment of a family therapist, Jennifer Cebe, Psy.D., on jurisdictional grounds. Finding no error, we affirm. Gavin Schilling and Erin Monahan are the parents of H.S., who was born in The parties share joint custody of H.S. pursuant to an agreed order

2 that was entered in October Thereafter, the relationship between Schilling and Monahan became contentious, and they experienced difficulties co-parenting. In December 2011, the court entered an order 1 for H.S. to attend therapy with Dr. Ginger Crumbo, Psy.D., and the court ordered the parties to fully cooperate with this therapist and all recommendations. The court subsequently ordered the parties to attend co-parenting therapy with Matt Veroff, noting the parties relationship exhibited a high level of conflict. In August 2015, the court granted Monahan s motion to implement Dr. Crumbo s recommendations relating to the ongoing treatment of H.S. In its written order, the court noted it had previously ordered the parties to cooperate with Dr. Crumbo. Pursuant to Dr. Crumbo s recommendation, the court appointed Dr. Jennifer Cebe to conduct a parenting/psychological evaluation and to communicate with the child s therapist, Ginger B. Crumb, PsyD as to her concerns and the specific type of evaluations that she believes would be helpful in her treatment of the minor child. Approximately six months later, Monahan filed a motion to hold Schilling in contempt for failing to schedule an evaluation with Dr. Cebe pursuant to the court s order. In response, Schilling asserted he could not afford Dr. Cebe s fee, and he moved the court to relieve him of the obligation to be evaluated. The court held a hearing, and Monahan s counsel advised the court Monahan had paid Dr. Cebe s entire fee. The court denied Schilling s pending 1 The record indicates, during 2011, Monahan and Schilling each filed motions alleging H.S. suffered physical and/or sexual abuse during the other parent s parenting time. These allegations were one of the underlying reasons H.S. began therapy with Dr. Crumbo. -2-

3 motion and postponed the contempt hearing until June 2016, to allow Schilling the opportunity to complete the evaluation with Dr. Cebe. On April 12, 2016, Schilling filed a motion to terminate Dr. Cebe s appointment. At the subsequent hearing, Schilling asserted Dr. Cebe intended to conduct a comprehensive custodial evaluation, which violated the court s August 2015 order requiring a parenting/psychological evaluation. Schilling further opined the court lacked particular case jurisdiction to order a custodial evaluation because neither party had filed a motion to modify custody. In response, Monahan argued a motion to modify custody was not required because the evaluation was not for the purpose of custody modification; rather, it was to assist Dr. Crumbo in the ongoing treatment of H.S. Monahan pointed out Dr. Crumbo advised Dr. Cebe regarding the scope of information she needed to effectively treat H.S., and Dr. Cebe concluded the comprehensive custody evaluation would provide that information. In its written order denying Schilling s motion, the court determined the proposed comprehensive custodial evaluation was appropriate in light of Dr. Crumbo s recommendations. The court further noted it was within the court s jurisdiction to enforce its previous orders. This appeal followed. On appellate review, [t]he question of jurisdiction is ordinarily one of law, meaning that the standard of review to be applied is de novo. Appalachian Reg l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, (Ky. 2007). Schilling argues on appeal, as he did below, the court lacked particular case jurisdiction to order a comprehensive custodial evaluation -3-

4 because neither party had filed a motion and affidavit to modify custody as required by KRS To support his argument, Schilling primarily relies on a footnote in Masters v. Masters, 415 S.W.3d 621 (Ky. 2013). In Masters, the Kentucky Supreme Court addressed the jurisdictional implications of a motion to modify custody that failed to comply with the statutory affidavit requirement. Id. at 623. The court concluded failing to comply with the statute did not divest the trial court of subject matter jurisdiction; rather, the noncompliance provided the opposing party an opportunity to challenge the court s improper exercise of its judicial power. Id. at 624. In a footnote, the Court further opined: Id. n.2. Failure to comply with the affidavit requirement under discussion implicates not subject matter jurisdiction, but rather implicates particular case jurisdiction, which describes the situation when a court has subject matter jurisdiction over a particular type or class of case, but because of a procedural fault, cannot properly act in the specific case under review. After careful review, we conclude Schilling s reliance on Masters is misplaced. Under the circumstances of this case, we are not persuaded the court lacked authority to enforce its prior order for an evaluation by Dr. Cebe. The parties were clearly subject to a standing order of the court to cooperate with Dr. Crumbo, and she recommended an evaluation with Dr. Cebe. The court subsequently adopted that recommendation and ordered the parties to undergo a parenting/psychological evaluation. Pursuant to the court s order, Dr. Cebe 2 Kentucky Revised Statutes. -4-

5 consulted with Dr. Crumbo regarding the scope of the evaluation and ultimately determined a comprehensive custodial evaluation would be the most beneficial to Dr. Crumbo s treatment of H.S. Schilling refused to participate in the evaluation upon learning Dr. Cebe intended to conduct what she described as a comprehensive custodial evaluation, and he moved the court to terminate Dr. Cebe s appointment. In its written order denying Schilling s motion, the court explained, in relevant part: The Court rejects attacks on Dr. Cebe s credibility and intentions, as they have no factual basis. Dr. Cebe is a trusted professional, frequently relied on by the Court to conduct such evaluations. Dr. Cebe did not act in contradiction with the Court s August 18, 2015 Order. The Court sees no clear distinction between a parenting/psychological evaluation and a comprehensive child custody evaluation. Further, the parties are under an Order to comply with the recommendations of Dr. Crumbo, and Dr. Cebe was directed to communicate with Dr. Crumbo regarding the type of evaluations she believed would be helpful in the treatment of the minor child. Clearly, Dr. Cebe was only trying to follow Court orders and conduct the examination she believed was needed to address the child s best interest. We are mindful that [d]isputes arising in family law are subject to the court's continuing jurisdiction over children until they reach majority or emancipation.... Murry v. Murry, 418 S.W.3d 432, 435 (Ky. App. 2014). Further, it is well settled that a trial court has inherent authority to enforce its own orders. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 688 (Ky. App. 2009). Here, the trial court denied Schilling s motion and ordered him to -5-

6 comply with the evaluation pursuant to the court s order of August Despite Schilling s argument to the contrary, we conclude the court properly acted within its judicial authority to enforce its previous order regarding the appointment of Dr. Cebe. For the reasons stated herein, we affirm the order of the Jefferson Circuit Court. ALL CONCUR. BRIEFS FOR APPELLANT: J. Baxter Schilling Louisville, Kentucky BRIEF FOR APPELLEE: Diana L. Skaggs Michelle Eisenmenger Mapes Louisville, Kentucky -6-