RENDERED: JULY 21, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1173-MR

ANNIE SMITH APPELLANT

APPEAL FROM BOYD CIRCUIT COURT

v. HONORABLE JOHN F. VINCENT, JUDGE

ACTION NO. 21-CI-00638

JOSHUA SMITH APPELLEE

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT, 

JUDGES.

ECKERLE, JUDGE: Annie Smith (“Mother”) appeals from an order of the Boyd 

Circuit Court which granted the post-judgment motion of Joshua Smith (“Father”) 

to modify the parties’ timesharing agreement. Mother argues that the Trial Court 

failed to apply properly the best-interests-of-the-child standard required for 

modification to shared parenting-time. We agree that the findings are insufficient 
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to determine whether the Trial Court applied the proper standard. Hence, we 

reverse and remand for additional findings.

Mother and Father were married in 2013 and separated in 2021. One 

child, L.T.S. (“Child”) was born of the marriage in 2015. Father filed a petition for 

dissolution of the marriage on October 26, 2021. At the time of the filing of the 

petition, the parties had entered into a written separation agreement (“the 

Agreement”) resolving all of the issues related to the dissolution, including custody 

and timesharing. On that issue, the parties agreed to have joint custody of Child, 

with Mother being the primary residential custodian. 

The Agreement further provided that Father shall have timesharing 

Saturday 9:00 a.m. through Monday at 8:30 a.m., weekly, with Mother receiving 

one weekend per month with Child. The parties further acknowledged that 

“additional timesharing may be arranged based on each parties [sic] work 

schedule.” The Agreement further stated that the parties “agree to work together to 

equally divide holidays.” In the event of a disagreement on timesharing during the 

holidays, the parties agreed to follow Local Timesharing Guidelines. The parties 

agreed to divide the child income-tax credit in alternating years. And finally, 

“[b]ased on the incomes of the parties, joint custody, and equal timesharing, the 

parties agree to waive child support.”
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The Trial Court entered a decree incorporating the Agreement on 

January 4, 2022. However, the parties soon had disagreements regarding 

timesharing. On April 1, 2022, Mother filed a motion to modify the Agreement. 

She specifically requested that she be awarded child support and that she be 

allowed to claim Child as a dependent for income-tax purposes every year. After 

filing his response to this motion, Father also filed a motion to modify timesharing. 

Father stated that Mother was interfering with the exercise of his timesharing. 

Consequently, he requested that the Court set a specific schedule with alternatingweek custody.

The Trial Court assigned the motions to a hearing before a Domestic 

Relations Commissioner (“DRC”), who held a hearing on May 12, 2022, but did 

not take any evidence. Following the hearing, the DRC issued a report 

recommending that the parties exercise timesharing on a week-to-week basis until 

a full hearing could be scheduled. The DRC also recommended that Mother shall 

claim the tax exemption for Child for the 2022 tax year. 

Mother filed objections to the DRC’s report, which the Trial Court 

sustained in part. In an order entered on June 3, 2022, the Court specified that the 

parties’ week-to-week timesharing shall run from June 1, 2022, until July 31, 2022,

or until the DRC hearing. The Court otherwise adopted the DRC’s 

recommendations.
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The matter was scheduled for a hearing on August 3, 2022. Mother 

testified that she was opposed to equal timesharing because she did not believe 

Father was seeking it for the right reasons. Mother stated that she and Child have a 

very close relationship. She also testified that Child did not feel comfortable at 

Father’s house. Mother did not specify the alleged difficulties that Child was 

having, but stated her belief that Father was too strict with Child. Mother stated 

that she believed shared parenting time would deprive Child of a stable home, and 

thus she did not want the week-to-week schedule. She stated that Child stays with 

her parents on days when she is working.

Mother agreed that Father was a good parent and she had no objection 

to him having timesharing with Child. Mother also admitted that she often delayed 

turning Child over to Father for timesharing because Child was sleeping. Finally, 

Mother stipulated that she was no longer seeking child support.

In his testimony, Father testified that he had recently changed 

positions, and his work schedule was now flexible enough to allow him to have 

custody of Child during the week. On days he is scheduled to work, he drops off

Child at school, and then his parents pick up Child after school. Father believes 

that it is in Child’s best interest to have a relationship with both sets of 

grandparents and to spend as much time possible with each parent. 
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Father also stated that Mother has been uncooperative with holiday 

visitation and the additional timesharing set out in the Agreement. He stated that, 

while Mother allowed him to make up days missed for weekend timesharing, she 

did not allow him any additional timesharing beyond the weekend visitation.

Father said he “often” had problems getting Child on time, and he frequently had 

to ask for visitation. He believed that the summer timesharing has been better 

because there is a consistent schedule. Father believes that Mother was 

manipulating the timesharing and refusing him additional timesharing as 

contemplated by the Agreement. 

Father also stated that Child has his own bed at his house. He does 

not believe it is appropriate for Child to sleep in bed with either parent. He also 

believes that Child needs more consistent rules at home. Father testified that he 

believed the intent of the Agreement was to equalize the timesharing based on the 

parties’ work schedules. Father further testified that he is able to provide 

consistency and stability for Child. And finally, Father was agreeable to a right of 

first refusal if the week-to-week arrangement continued.

The DRC issued her report on August 12, 2022. After reviewing the 

evidence, the DRC recommended that the parties continue joint custody with equal 

timesharing on a week-to-week basis. The DRC also set out a specific schedule for 
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holiday visitation. And the DRC recommended that Mother have the child credit 

for 2022, and then the parties would alternate claiming the credit.

Mother filed objections to the DRC’s report, arguing that the DRC 

failed to apply KRS1 403.270 and 403.320 properly. Mother also argued that the 

DRC failed to apply the best-interests standard correctly. Mother also took 

exception to the DRC’s recommendations regarding the right of first refusal and 

the allocation of the tax credit. The Trial Court overruled Mother’s objections and 

entered an order confirming the DRC’s report on August 26, 2022. This appeal 

followed.

A modification of custody is governed by KRS 403.340, and when 

made within two years of the original custody decree, requires at least two 

affidavits stating that there is reason to believe either that “[t]he child’s present 

environment may endanger seriously his physical, mental, moral, or emotional 

health” or that “[t]he custodian appointed under the prior decree has placed the 

child with a de facto custodian.” KRS 403.340(2). However, when only 

modification of timesharing or visitation is sought, then KRS 403.320 applies. 

Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). KRS 403.320(3) allows 

1 Kentucky Revised Statutes.
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a court to modify timesharing or visitation “whenever modification would serve 

the best interests of the child[.]” 

Unlike the requirements for an initial determination of custody under 

KRS 403.270 or a modification of custody under KRS 403.340, KRS 403.320 does 

not impose a presumption of joint custody and equal parenting time. Layman v. 

Bohanon, 599 S.W.3d 423, 430 (Ky. 2020). Rather, KRS 403.320(3), authorizes a 

court to modify timesharing if it is in the best interests of the child. But under the 

statute, a court can only order a “less than reasonable” timesharing arrangement if 

the child’s health is seriously endangered. Layman, 599 S.W.3d at 430. 

In this case, Mother does not allege that the modified timesharing was 

“less than reasonable.” Rather, she argues that the DRC and the Trial Court 

improperly presumed that equal timesharing would be in Child’s best interest. She 

also argues that the DRC did not set out the manner in which equal timesharing 

would be in Child’s best interests. Consequently, Mother maintains that the Trial 

Court abused its discretion by granting equal timesharing to Father.

We agree with Father that the Trial Court had wide discretion to 

modify timesharing if it was in the best interest of Child. Pennington, 266 S.W.3d 

at 769. In addition, it is apparent that some modification was in order due to the 

lack of a set schedule for the discretionary timesharing set out in the Agreement. 

The DRC noted that “[t]here has been no evidence or testimony presented that 
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equal timesharing would be contrary to the best interest of the minor child.” The 

DRC also expressed the opinion that Child should be sleeping in his own bed, and 

that both parents should enforce a consistent bedtime for Child. The DRC then 

concluded that equal timesharing would be in Child’s best interests.

As discussed in Layman, supra, 

There is no set formula for determining whether a 

modified timesharing arrangement is reasonable; rather, 

it is a matter that must be decided based upon the unique 

circumstances of each case. For example, it does not 

necessarily mean that a parent has less than reasonable 

timesharing just because he or she spends less time with 

the child than under the original timesharing 

arrangement. 

Id. at 432 (citations omitted).

On the other hand, Layman also makes it clear that the Trial Court 

may not simply presume that equal timesharing would be in Child’s best interests 

on a motion to modify timesharing. Id. at 431. Here, the DRC did not address the 

manner in which granting equal timesharing would be in Child’s best interest. 

Moreover, as the moving party for this modification, Father had the burden of 

proving that equal timesharing would be in Child’s best interest. See N.B. v. C.H., 

351 S.W.3d 214, 226 (Ky. App. 2011). It is not clear whether the DRC applied an 

improper presumption or concluded that the circumstances made equal timesharing 

in the Child’s best interests. Because KRS 403.320(3) specifically requires the 

latter finding, that question is essential to the judgment. Keifer v. Keifer, 354 
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S.W.3d 123, 126 (Ky. 2011) (citing Anderson v. Johnson, 350 S.W.3d 453, 458 

(Ky. 2011)). Consequently, we must remand this matter for additional findings on 

that issue.

Mother also complains that the Trial Court failed to set out a right of 

first refusal even though both parties agreed that it would be appropriate if the 

shared custody arrangement continued. Since we are remanding for additional 

findings, we need not reach this question. 

Lastly, Mother argues that the child tax credit should be allocated 

entirely to her if she remains as Child’s primary residential custodian. Again, we 

need not reach this question. However, we must point out that the allocation of a 

federal tax exemption is not a matter solely within the discretion of the trial court,

but is subject to the Internal Revenue Code and accompanying regulations. 

Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 782-83 (Ky. 2015). 

Consequently, a trial court must do more than simply look to which parent has the 

highest income, or divide the exemptions, or direct the parties to take the 

exemption in alternate years. Id. at 784. On the other hand, where both parties 

qualify for the deduction, the Trial Court retains the discretion to allocate the 

exemption equally if it is in the best interests of the child. Id. at 783-84. See also 

Keith v. Keith, 556 S.W.3d 10, 16 (Ky. App. 2018).
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Accordingly, we reverse the order of the Boyd Circuit Court and 

remand for additional findings on whether modification of timesharing would be in 

Child’s best interests based on the facts and circumstances of this case.

ALL CONCUR. 

BRIEF FOR APPELLANT:

Jeffrey D. Hensley

Russell, Kentucky

BRIEF FOR APPELLEE:

Natasha L. Kinnan

Catlettsburg, Kentucky