The Supreme Court reaffirms the American Rule against shifting fees, recognizing CR 37.03 and KRS 403.220 as exceptions to the rule. In this case, $50,000 of attorney fees were awarded to the Wife under CR 37.03 and KRS 403.220. The Supreme Court held that the Trial Court misapplied CR 37.03 by imposing discovery sanctions on Husband for denial of a request for admission. The Trial Court should have considered Husband’s grounds for denial. As in this case, when a party reasonably believes he might prevail on a matter, or has a legitimate reason for denial of a request for admission, the denial is justified and sanctions are improper. CR 37.03 is to be narrowly construed. Husband should not have been sanctioned under CR 37.03.
Unlike 37.03 which provides for narrow sanctions, KRS 403.220 provides for attorney fees when there is financial disparity between parties to a divorce. The Trial Court has broad discretion in awarding attorney fees under KRS 403.220. The rule is not punitive, but Kentucky case law holds Trial Courts can appropriately consider the litigation conduct of the parties. Allowing Trial Courts this discretion prevents an “unreasonable or an unfair burden on the party with fewer financial resources.” In this case, the Supreme Court notes facts which may support an award of attorney fees under KRS 403.200. The Supreme Court remands the matter to the Trial Court to determine the amount of Wife’s attorney fees Husband should pay under KRS 403.200.
Finally, The Supreme Court looks to Husband’s argument that wife improperly applied CR 59.05. The Wife challenged the business-valuation amount after trial and entry of the initial judgment. CR 59.05 is not available to Wife because she could have raised the business-valuation issues during the trial. Wife’s use of CR 59.05 and the Trial Court’s subsequent modification of the property settlement award are improper. The Supreme Court agrees with the Husband that Wife should have raised any business-valuation issues pre-judgment, as she has the information available to her at that time.
The appellant argued that the tax exemption for a child was non-modifiable because it was a bargained-for property right. The court looked to the language of the Agreement and held that the tax exemption was indeed modifiable because of the 4 corners doctrine. The agreement about the tax exemption was within the Agreement’s paragraph on child support. The Agreement itself expressly allowed modification for the child support provision. Additionally, the court indicated that allocation of a tax exemption for a child may be modifiable in any circumstance under KRS 403.180(6) which prevents parties from limiting or precluding the modification of issues concerning child support, visitation, and custody.
The Appellate Court reversed and remanded a Trial Court Order for reinitiation of contact between a mother and her two children. The Appellate Court first held that the Trial Court’s original order conditioning reinitiation on compliance with all therapeutic recommendations was never modified, set aside, or reversed. Therefore, the mother was bound by it. The mother’s noncompliance with the original order was enough to bar reinitiation of contact.
The court reiterated the principle that when there is a previous denial of visitation, there is no presumption visitation is in the child’s best interest. The mother’s DVO prohibiting contact which her children destroyed the presumption visitation was in her children’s best interest. It is the child’s best interest which controls the decision to resume visitation. In this case, the court held reinitiation was not the children’s best interest because none of the experts believed visitation should resume, the mother had ongoing mental health problems, and the conditions of the previous order had not been met. The desire of the children to see their mother was not sufficient evidence visitation was in their best interest.
The appellate court affirmed the family court’s decision to exclude income from W’s limited partnership in child support calculations. The court held that income generated from an ownership interest in a limited partnership may be considered income in calculating child support. In this case, W had no control over the distribution and there was no evidence in the record showing a cash distribution (K1 line 19), so the court found the family court properly determined the income from the partnership, while taxable income, was not disposable income.
The appellate court’s dissenting opinion found the case should be reversed and remanded to make finding as to the income W received as a distribution. The dissent indicates the family court’s decision could have been an abuse of discretion if it did not include the partnership income because it found that partnership distributions should not be considered income.
Parties entered into a mediation agreement and advised the trial court that all issues had been settled with the exception of child support. The parties agreed they would supply income information for the child support worksheet. The mediation agreement was silent as to the child support arrearage. The parties dissolution of marriage was entered incorporating the mediation terms. The decree was also silent as to the child support arrearage. After the final degree was entered, the arrearage was brought to the court’s attention in a Motion for Reconsideration. The trial court denied the Motion holding the mediation settled all matters. The Appellate Court reversed and remanded because the mediation did not settle on the child support issue, and any support is for the benefit of the child, and it is fixed once it accrues.
Smith v. Smith, Nonmarital property might still be subject to division between parties where there is a partnership, joint venture, or profit sharing agreement. In this case, the parties cohabitated prior to marriage. While the property acquired during cohabitation was nonmarital, the nonmarital property was still a jointly owned asset by agreement of the parties subsequent to a joint venture. Thus, the property lost its nonmarital characterization. The court also concluded the appellant did not properly trace the additional properties she was claiming were nonmarital, therefore there was no clear error in the finding that they were marital property. In addition, the court found no clear errors in the Trial Court’s child support, property division, and debt assignment decisions.
On a procedural note, this case points out that certification of the record must include video recordings. The court cannot look to video recordings for evidence if they are not part of the record on appeal.
Hempel v. Hempel. When child support is reversed on appeal, overpaid child support cannot be recouped unless there is an accumulation of benefits not consumed for support. If the overpayments have already been expended to benefit the child, no recoupment is allowed, even when a fund equivalent to child support is available. A college fund would not be equivalent to child support even if equivalency were allowed.
B.L. v. J.S., et al Lack of counsel in underlying neglect case is not considered alack of counsel at all critical states of adoption where the biological parentwas not the target of the neglect case and where biological father did not object to adoptive parents being granted full custody of child. Biological father is not a parent exercising custodial control or supervision where he was incarcerated and uninvolved with child for most of child’s life. Court was not required in adoption proceeding to consider less drastic means than adoption. Finally, relatives related only by marriage are nonetheless relatives where statute does not require they be blood relatives and thus there was no error in permitting great-aunt and great-uncle related by marriage to adopt without placement for adoption by the Cabinet.
Residency in KY is not a requirement for continuing jurisdiction. The central inquiry is whether child maintained a substantial connection with KY. UCCJEA is concerned with child's connection to the state, not a particular county.
N.J.S. v. C.D.G. Because the Ky child support statute does not authorize a credit against child support for child’s social security retirement dependent benefit, it was error allow such a credit and to order that payor be reimbursed for child support overpayment from the child’s retroactive lump-sum benefit. Concurring opinion underscores the need for legislative fix as is currently provided for with respect to disability dependent benefits.
B.D. v. Cabinet for Health and Family Services, et al. Where children are removed from parent under a temporary removal order and then parent files a petition in family court for “immediate entitlement” under KRS 620.110, family court erred in dismissing the case without a hearing. The family court had held that statute is intended for appellate review and because the family court made the removal order, an appeal should be made to the court of appeals. The Court of Appeals held that the removal order was a temporary order and thus is interlocutory and not ripe for appeal. Moreover KRS 620.110 does not refer to an appeal. It is an original action which should be heard in family court.
Bell v. Bell Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result.
Cabinet for Health and Family Services v. K.H., Sr. Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore reversed and the family court’s order terminating parental rights was affirmed.
Coffey, et al v. Wethington A person acting as a parent has standing to bring a custody action. If the person acting as a parent has physical custody of the child at the time the action is commenced, standing exists and it need not have been for six consecutive months. The six month requirement applies only to persons who had physical custody in the past but who do not have physical custody at the commencement of the action.
Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within 5/2/13 motion to vacate the DVO, Appeals court lacks jurisdiction to consider appeal of the denial of the 2013 motion to vacate.
Where Ky did not issue original custody decree, neither child currently resides in issuing state and that state declines to exercise exclusive continuing jurisdiction, and one child lives with father in Ky and other child resides with mother in AZ, Ky is clearly the home state of one child and AZ is clearly the home state of the other child. The only issue is whether Ky should decline to exercise jurisdiction to modify because AZ is a more appropriate forum. While splitting jurisdictions should generally be avoided, in this case trial court was reversed because AZ has no connection to the son, no relevant information about the child is located in Az, and none of the factors of KRS 403.834(2) would favor AZ’s exercise of jurisdiciton over KY.
Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs.
Murry v. Murry Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and presents more problems than it resolves falls short of the requirement that necessary facts be found specifically so case was remanded to trial court to make further factual findings.
A prior appeal affirmed the 50/50 division of debt to husband’s father. Husband sought to garnish wife’s maintenance to satisfy her half of the debt. Trial court’s denial of this request and trial court’s subsequent denial of husband’s father’s motion to intervene for a judgment and payment schedule was affirmed on appeal. Proper procedure is for husband’s father to attempt to collect the debt in a separate action against wife.
Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may have lacked requisite number of affidavits, because party did not raise the issue before trial court she cannot raise deficiency on appeal.
Even though parent had never completely denied grandparent visitation, court may not presume grandparent visitation is in children’s best interest. Rather, court must presume parents have the right to limit visitation with grandparents and grandparent retains burden of proving that court-ordered visitation is in children’s best interests.
Where MSA awarded each spouse his/her own IRAs and each waived any claim to the IRA of the other, but husband failed to change his beneficiary designation to someone other than former spouse, Ky Court of Appeals affirmed trial court’s denial of new wife’s request to declare that former spouse had no rights as beneficiary.
Smyrichinsky v. Smyrichinsky http://opinions.kycourts.net/coa/2013-CA-000181.pdf Where both parties and the child have moved from the state issuing original child support order, trial court properly applied Kentucky law. The Court noted that the mother did not object to the application of Ky law until the third time the Ky court modified support. Trial court allocation of income tax dependency exemptions to father for three specific years affirmed.
v. Haden, et al,
Where appellants’ claim for attorney fees was in ad damnum clause and no
statement of why he or she is legally entitled to the request was made, no
separate claim for relief was before the court. Once court entered
custody directed verdict and more than 10 days passed with no motion to alter or amend,
the court lost jurisdiction. Award of attorney fees made months following the
final judgment was reversed.
Penner v. Penner. Ky trial court reversed for including stock options in income for support
while dividing options as assets. Double dipping. Also reversed for
failing to include gifts from her parents in wife’s income for child support
purposes. And, reversed for failing to give husband credit for payment of
mortgage deficiency caused by wife’s failure to make mortgage payments as
ordered. Affirmed on all other grounds raised.
v. Cabinet for Health and Family Services.
Termination of parental rights reversed where findings did not cite any
evidence supporting what reunification efforts were made nor how termination
was in children’s best interest and appeared to rely on incarceration alone.
v. Ciampa Trial Court’s findings supported reduction of child support by only 3% following
emancipation of older child where income substantially exceeded guidelines.
Trial court included private high school tuition as part of child’s needs.
There were only a couple of changes within the July 26, 2013 Opinion that differ from the withdrawn April 12, 2013 Opinion so we will not post a new digest. The replacement Opinion directs that on remand the trial court also determine whether the GRAT checking account should be included within the marital estate. The replacement Opinion also addresses the valuation of a parcel of real estate and the court held that the factual finding was not clearly erroneous.
v. Triplett, coverture fraction of pension upheld where appellant failed to
preserve subtraction or bright line arguments in trial court.
v. Ipock, et al, CR60 may be used to disestablish paternity with the results of
a completed DNA test in which case the results of the test shall be the
predominant factor in the trial court’s decision. Order allowing CHFS and GAL to
intervene in divorce action affirmed.
v. Seay, Emancipation of one child triggers review of child support
without regard as to whether the new amount is 15% greater or lower.
filed for dissolution of the parties’ thirty year marriage in 2004. During his
employment, Husband actively participated in his employer’s retirement pension
plan. Subsequent to the parties’ separation, Husband was injured and filed for
short term disability. The order entered by the Court after mediation included
a provision that Husband was to provide to Wife information concerning the retirement
account, including the policy, and all information regarding Husband’s
disability. Wife was not provided with this information. The trial court
entered a limited decree of dissolution in December 2004. In August 2006, the
Court entered a judgment against Wife for the value of Husband’s personal
property not returned to him. Husband filed a motion in June 2008 to satisfy
the judgment. Since the pension issue had not been resolved, the Court also
granted Wife’s request that the parties exchange all documents relating to retirement
or disability accounts.
In June 2011, the Court entered an
order holding that Husband’s retirement pension was not subject to division as
marital property because Husband’s retirement pension was converted into a
disability pension. Wife filed a motion to alter, amend or vacate the order
because she was never provided with the retirement policy documents. Husband
was deposed, and Wife received the documents. In January 2012, the Court granted
Wife’s motion to alter, amend or vacate the judgment, holding that Wife was
entitled to entry of a Qualified Domestic Relations Order allocating one half
of the pension benefits accrued from the date of marriage to the date of the
entry of the limited decree of dissolution. The court found that Husband’s
disability pension would be converted to an ordinary retirement pension when
Husband reached the age of 62. Wife was also ordered to satisfy the August 2006
judgment against her, plus statutory interest. Husband filed a motion to alter,
amend or vacate the Court’s January 2012 order. The Court denied Husband’s
motion after a hearing, and Husband appealed.
Court ruled on the divisibility of the retirement plan, the relevant plan
documents had not been made available to Wife or the Court. Because a full and
candid disclosure of the parties’ assets is necessary for an equitable division
of property, the Court did not abuse its discretion in granting Wife’s motion. Once
obtained, the policy clearly stated that when Husband turned 62 his disability
pension would end, and he would become eligible for a normal retirement
pension. The Court of Appeals distinguished this case factually from the
Kentucky Supreme Court’s decision in Holman
v. Holman, 84 S.W.3d 903 (Ky. 2002), which held that disability benefits
which replace future income should not be classified as marital property.
Husband’s disability benefits would be reclassified on a date certain, which
was different from the facts presented in Holman.
The ordinary pension benefits that were accumulated during the marriage that
would be reclassified as normal pension funds when Husband turned 62 were
marital property. Any other conclusion would be inequitable because it could
allow a spouse to prevent the other spouse from his or her share of retirement
benefits through an election of disability coverage.
On the attorney’s fees issue,
Husband argued that the Court failed to rule on the motion. Wife argued that
the Court’s silence on the matter was a denial of attorney’s fees. The Court of
Appeals agreed with Wife, stating that attorney’s fees are entirely within the
discretion of the trial court, and the Court in this case clearly considered
the financial resources of both parties throughout the lengthy proceedings.
Nothing in the record could demonstrate that the Court abused its discretion in
failing to award attorney’s fees.
Published: Affirming in part, Reversing in part, and
Husband and Wife were married on
June 14, 1980. Husband’s family owned an automotive parts remanufacturing
business, which was very successful for many years. When business declined,
Husband and his two brothers invested money from the family business into
several real estate holdings, which produced significant rental income. Husband
and the brothers, in an effort to minimize tax liabilities, utilized the
assistance of attorneys and accountants and created a Grantor Retained Annuity
Trust (GRAT). A GRAT, according to the Court of Appeals, is an estate planning
tool wherein assets are transferred to a trust and ultimately to other
beneficiaries so as to avoid estate taxes upon a donor’s death. Husband and his
brothers also created a partnership, with all of the brothers and their wives
executing general warranty deeds for all of the partnership’s property, which
transferred any dower interest the wives had, or might have had, in the
properties. Husband created his irrevocable GRAT and transferred his limited
partnership interest while retaining a small general partnership interest.
Husband received from the GRAT quarterly payments of $72,295 for nine years.
The funds were used for the couple’s personal and joint expenditures. Husband’s
children were beneficiaries of the GRAT as well, and received their portions of
the GRAT; a gift tax return was filed with the IRS. Wife also retained an
interest in the GRAT when the annuity payments terminated. Although divorce was
not contemplated in the GRAT instrument, Wife would retain an interest in the
GRAT if Husband died, until her death or remarriage.This arrangement avoided up
to one million dollars in tax liability.
Husband and Wife initiated divorce proceedings
in 2004. A limited divorce decree was entered in January 2005, which reserved
rulings on the division of marital assets. Wife argued that she did not fully
understand the extent of the assets transferred to the GRAT and would have
never agreed to release her share of assets valued at millions of dollars. Wife
sought her interest in the property of the GRAT.
held a five day trial of the property division in April and May of 2006. After
additional filings and extensive motion practice followed, the court requested
calculations consistent with its draft opinion of the issues. The court issued
its opinion May 28, 2008, finding that the GRAT was valid and legally created
and that Wife was entitled to a one-half interest in her marital portion of the
GRAT. The court held additional hearings on the value of the GRAT property. On
February 18, 2010, the court entered findings of fact and conclusions of law on
the value of the GRAT and ordered Wife’s was entitled to a payment of
$1,769,718.00, which was later reduced by the court to $1,410,106.00 plus
post-judgment interest calculated at five percent. Husband appealed, alleging
multiple errors; Wife filed a cross-appeal and a direct appeal on the issue of
post-judgment interest. ANALYSIS:
of Appeals found that Wife was not defrauded when the GRAT and partnership
interests were created. Husband did not defraud Wife into signing any documents
or coerce her to release her interest in property, and the trust instrument did
not contemplate divorce. Wife also failed to join the GRAT and its trustees,
beneficiaries, or contingent beneficiaries, all of whom would have been
necessary parties in an action seeking to avoid the trust.
further found that the funding of the irrevocable trust removed the transferred
property from the marital estate. KRS 403.190(1) and other relevant case law
define whether an asset is marital or non-marital for purposes of
division.The court must determine
whether the asset is marital or non-marital, assign each party his or her
non-marital property, assign each party’s interest in property with both
marital and non-marital components based on the evidence and equitably divide
all marital property. The formation of the GRAT in this case was for a valid
estate planning purpose and is nearly identical to the estate planning scheme
in Gripshover v. Gripshover, 246
S.W.3d 460 (Ky. 2008). Wife received an adequate benefit from the GRAT income
because she and Husband enjoyed the quarterly annuity payments over the years,
which exceeded $2,600,000. It was proper that the trial court accepted Wife’s
expert in the accounting of the disbursements.
Because the GRAT was improperly
included in the marital estate, the Court remanded for further determination
concerning the proper valuation of the marital estate and division thereof
without reference to the GRAT.Because
property division and equalization payments would be different without
inclusion of the GRAT, the issue of maintenance was also remanded, but the
Court of Appeals made no finding of whether a maintenance award would be
appropriate in this case.
also argued that $60,000 was erroneously assigned to him in the valuation of
marital assets because he used those funds for a marital purpose. Trial courts
are given wide discretion in this area, and the court did not find Husband’s
testimony that the funds were used for a marital purpose credible. The trial court
found that those funds had been used for attorney’s fees, non-marital debts and
other personal expenditures, which was not clear error.
challenged an award to Husband of accounts receivable for loans made during the
marriage. Since Wife was awarded one-half of the accrued interest payable to
Husband on a particular loan, any further award to Wife would result in a
double recovery. Therefore, the court did not err in preventing a second
division of this asset.
appealed the trial court’s decision to award her an unfinished vacation home in
Gulf Shores, Alabama, valued at $2,050,000, and making Wife responsible for all
taxes, claims and costs associated with the property. Wife insisted on
retaining the home against the advice of trial counsel and the court. Wife
argued that Husband should be responsible for his portion of the taxes and
other costs associated with the property before he conveyed the property to her
in 2010. The trial court allocated unpaid construction costs, insurance premiums
and other costs to each spouse at the time of the divorce decree. Since the
other costs were incurred after the divorce decree was entered and was incurred
solely for Wife’s benefit, the debts were non-marital, and Wife is responsible
for all of the costs associated with the property after that date.
issue of post-judgment interest, the Court of Appeals upheld the trial court’s
order award of five percent post-judgment interest. The trial court concluded that five percent
was the rate of return on investments during the litigation and imposing a
higher rate would be inequitable. The Court of Appeals agreed, stating that the
post-judgment interest rate is mandatory only to money awards containing
deferred payments for portions allocated to the non-paying spouse. In this case
the trial court weighed the equities, including that Wife’s award was to be
paid in a lump sum and Husband was given a relatively short amount of time to
make full payment.
Whether a man, with whom Mother admits having an affair and living with for
about fifteen months-until mere days before Child’s birth-is entitled to know
whether Child is his biological son.
gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom
she plans to remarry, is the father and listed him as such on Child’s birth
certificate. Despite an order from the Family Court compelling Mother to
undergo genetic testing for herself and Child, neither was tested due to
Family Court entered an order following a hearing on a paternity complaint by
The Family Court found Mother in contempt of multiple orders from the Family Court, which ordered
her to submit herself and Child to genetic testing by a later date or serve 180
days in jail. Mother refused to comply with the Family Court’s orders.
Mother alleged that she and Child
should not have been ordered to complete the genetic testing because no state
action was involved; Putative Father did not qualify as such under KRS 406.21
and could not challenge paternity; Ex-Husband was presumed to be Child’s father
because Child was born less than five months before the parties’ divorce; the
Family Court’s order violated Mother and Child’s constitutional right to
privacy; and the Family Court should not have ordered the maximum contempt penalty
for Mother’s failure to comply with the court’s order.
KRS Chapter 406 is the means by
which courts determine fatherhood. While a child born during lawful wedlock may
be presumed to be the husband’s child under KRS 406.11, that presumption is
rebuttable, so that a legal finding of paternity is not denied to a putative
father. KRS 406.091(2) mandates genetic testing upon a request of a party
supported by an affidavit. Putative Father in this case made such a request,
and it was the Family Court’s duty to order the genetic testing. Mother should
have requested written findings of fact and conclusions of law from the Family
Court regarding whether Putative Father qualifies as a putative father under
the statute and whether he had standing to assert a claim of paternity.
However, Putative Father presented sufficient evidence on the record that he
had sufficient access to Mother to make him Child’s father. Mother and Putative
Father lived together at the time of conception and engaged in sexual relations,
and Putative Father was present when Mother took a pregnancy test, which was
subsequently confirmed by a doctor. Mother told Putative Father repeatedly that
he was Child’s father during the pregnancy, and Putative Father provided Mother
with food, shelter, clothing and medical care during the pregnancy. Putative
Father also opposed abortion and adoption options when they were presented by
Mother. Thus, Putative Father had standing to challenge paternity and request
genetic testing. Holding otherwise would deny Putative Father the right to
prove his claim of paternity and deny Child the right to develop a relationship
with his biological father. Furthermore, Mother offered no proof that would
exclude Putative Father as a potential father of Child, especially since she
told an Ohio family court in proceedings with Ex-Husband that she was not
Mother was ordered to complete
genetic testing on herself and Child on four separate occasions and violated
each order. The 180 day jail sentence for contempt was completely appropriate.
Her attempts to halt Putative Father’s claims and the fact that she could have
purged the contempt by complying with the Family Court’s order was sufficient
to uphold the sentence. Digested
by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates
Wife initiated divorce proceedings in 2009. After extensive hearings and a
trial, Husband was ordered the custodial parent and ordered to pay $1,700 per
month in maintenance for ten years. The divorce decree was entered in 2009.
Husband filed a motion seeking disclosure of financial documents and motions
for modification of child support and maintenance. The trial court’s findings
of fact and conclusions of law only addressed Husband’s maintenance obligation.
Relying primarily on the income of Husband’s new wife and citing expenses
relating to their marriage and the children of their marriage, the court
determined that the maintenance obligation should not be altered because the
payment amount was not unconscionable. Husband appealed.
presented to the court was whether a new spouse’s income, and the couple’s ability
to provide for children of the new marriage, should be considered when
determining whether maintenance owed to the former spouse should be modified. KRS
403.250(1) states that maintenance obligations may be modified “upon a showing
of changed circumstances so substantial and continuing as to make the terms
unconscionable.” When a party seeks to modify maintenance obligations, the
court compares the parties’ current circumstances to the circumstances at the
time the decree was entered. Modification of maintenance looks solely to
whether the obligor’s circumstances have changed in a substantial and
continuing way such that the order is rendered unconscionable.
court in this case determined that the Husband was earning $96,000 per year at
the time the decree was entered, and Husband earned only $48,000 per year when he
sought modification of the maintenance award. Rather than focusing on the
income of Husband’s new wife and expenses relating to his new children, the
trial court should have focused on whether the change in Husband’s income is
substantial and continuing such that the award is unconscionable. If the trial
court is determining whether the award should be reduced, the trial court may
consider the extent to which Husband’s relevant expenses have been reduced as a
result of his new marriage. Although not raised in this case, whether an
obligor is voluntarily underemployed or whether retirement, if applicable, was
reasonable could prevent the modification of a maintenance award.
wrote separately, concurring in the judgment. The trial court misapplied the
facts to the law in this case because a spouse’s decision to remarry and start
a new family does not relieve the spouse of the obligation to pay maintenance
awarded to a former spouse. The new spouse has no obligation to contribute to
the former spouse’s support. However, other facts in the case could support the
trial court’s decision to deny the maintenance modification. The trial court
should examine further on remand whether Husband’s income resulted from
voluntary underemployment, general economic conditions, his own choices, or
some combination thereof. Evidence that Husband in the past found well-paying
employment in auto sales even during difficult economic and personal
circumstances could indicate that Husband failed to show that the change in his
circumstances is not likely to be substantial and continuing.
On September 7, 2011, the Cabinet
for Health and Family Services filed a petition for the involuntary termination
of parental rights against Mother and Father. The Cabinet had filed two
dependency petitions regarding the children, alleging that they were abused or
neglected under KRS 600.020(1). The September 23, 2009, petition alleged that
the children had been left unsupervised without adequate food and that the
parents acknowledged that their substance abuse issues interfered with their
ability to care for the children. In a second dependency petition filed in
February 2010, the Cabinet alleged physical abuse against one of the children
during a supervised parental visit, lack of supervision of the children, and
the parents’ substance abuse issues. After a temporary removal hearing, the
children were placed in the custody of the Cabinet.
Throughout the dependency cases, the
parents were ordered to participate in supervised visitation, remain clean and
sober, comply with court orders, complete a psychological assessment, complete
a substance abuse assessment, and complete parenting classes. These orders were
incorporated into a case plan signed by the parents. The psychological
assessments showed that Mother’s intellectual functioning was in the borderline
range and that she could not care for young children without significant
outside assistance. Mother also acknowledged anxiety, depression and a nerve
disorder. Father’s psychological testing revealed cognitive function in the
extremely low range and recommended parenting education courses.
Mother and Father did not fully
comply with the recommendations in the assessments. Mother tested positive for
alcohol, and Father tested positive for cocaine during random alcohol and drug
screenings. Neither parent provided proof of completion of the ordered
parenting classes or attendance at Alcoholics Anonymous meetings.
The Family Court found that the
children would continue to be abused or neglected if returned to parental
custody and that termination of parental rights was in their best interest. The
parents’ mental and substance abuse issues made it clear that they would not be
able to provide even minimally acceptable care to the children. The court also
found that the children had been stable since their placement in foster care.
The parents appealed.
In order to terminate a parent’s
rights, Kentucky courts must find by clear and convincing evidence that the
child has been abused or neglected, that termination is in the child’s best
interests and that at least one of the grounds listed in KRS 625.090(2)
exists. The trial court has a great deal
of discretion in the involuntary termination of parental rights. The parents
argued that the Family Court erred in terminating their rights because the
Cabinet did not meet its burden.
Since the parents stipulated to the
abuse and neglect of their children alleged in the two dependency petitions,
there was ample evidence to support the Family Court’s finding that the
children were abused and/or neglected. The termination was in the best interest
of the children because the court considered how the parents’ mental and
cognitive disabilities affected their parenting. The Cabinet also made all reasonable efforts
to reunite the children with their parents before filing the termination
petition. The parents’ continued disregard for court orders and progress of
their children while in the Cabinet’s custody demonstrates that the Cabinet
could not have helped the family reunite. At the time of the termination
hearing, the children had been in the Cabinet’s custody for twenty-four months.
The parents had failed to provide essential food, shelter, clothing and medical
care to the children during that time, thus the children had been abandoned for
more than ninety days as required under Kentucky law. Furthermore, the children
had formed a strong bond with the foster parents and no longer required
The Family Court found that a litany
of grounds justified the termination of parental rights, and that finding was
not clearly erroneous.
Mother and Father were married in 2000 and filed for
dissolution of the marriage in 2008. When the petition was filed, Mother,
Father and Child born of the marriage lived in Campbell County, Kentucky. After
the dissolution was filed, Mother, with Child, and Father moved separately to
Ohio. Neither the child nor the parents lived in Kentucky when the divorce
decree was entered in 2009. Mother was awarded sole custody of Child, and
Father was awarded visitation and ordered to pay child support. The parties’
continued to litigate post-decree issues related to child support, visitation
and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to
relocate and notified the family court that she wanted to move with Child to
Abilene, Texas. Mother also filed a motion to modify Father’s visitation
schedule to reflect the distance between the parties. The Family Court entered
an order granting the motion to relocate and amending the visitation schedule.
Father filed a motion to reconsider the court’s
ruling based on a lack of jurisdiction, arguing that the court lacked
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). The Family Court denied the motion, stating that there was substantial
information available in Kentucky regarding the child’s care, protection,
training and personal relationships, and Father waived the issue by not raising
it until the motion to reconsider.
Father appealed, arguing that the Family Court
lacked subject matter jurisdiction to modify the original child custody
determination under the UCCJEA because there was no exclusive, continuing
jurisdiction because neither the parents nor the child lived in Kentucky.
The UCCJEA, codified in Kentucky law, governs
disputes concerning the state’s jurisdiction to decide child custody and
visitation matters. The Family Court’s jurisdiction to modify a custody
arrangement is determined at the time the motion to modify is filed. The Family
Court misinterpreted KRS 403.824(1) because the court no longer had exclusive,
continuing jurisdiction over the custody matter. A family court’s jurisdiction
is exclusive and continuing until one of two circumstances has occurred:
neither the child nor a parent of the child has a significant connection with
the state and substantial evidence regarding the child is lacking or neither the child nor the parents of
the child reside in that state. Therefore, unless a modification of custody has
been filed, the state loses exclusive, continuing jurisdiction when the
parents, persons acting as parents (if applicable), and child have all
physically left the state to live elsewhere. Even if a significant connection
existed and if certain evidence was available about the child in Kentucky, the
relocation of both parents and the child outside of Kentucky before the filing
of the modification divested the Family Court of exclusive, continuing
Ex-Wife appealed Family Court’s
order granting Ex-Husband’s motion requesting that minor child relocate to
reside with him in Florida.
Husband and Wife with two children
from the marriage divorced in 2003. Ex-Wife had sole custody of the children,
and Ex-Husband visited the children periodically with supervised visitation. When
the oldest child reached the age of majority, she moved to Florida to attend
college near Ex-Husband. Ex-Husband filed a motion for the younger daughter to
reside with him in Florida. The Family Court appointed a guardian ad litem (GAL) to represent the child.
The GAL filed a report with the court, and the court held a hearing, later
ordering that the child could relocate to Florida and live with Ex-Husband.
Ex-Wife argued that the court erred
when it did not allow her to call the GAL as a witness and denied her request
to strike the GAL’s report. Ex-Wife also argued that the court did not follow
the law governing a change of custody and improperly determined that the
relocation was in the child’s best interest.
The Kentucky Family Rule[s] of
Practice and Procedure provide that a GAL may be appointed by the court, but
the rules specifically differentiates between GALs and other professionals who
may be used in a custody proceeding. The GAL in this case was appointed to
represent the child. The GAL was a licensed attorney, and would have violated
the ethical rules governing confidential communications and acting as an
advocate when the lawyer is likely to be a witness. Although Kentucky law does
not specifically define the role of a GAL in custody proceedings, the Family
Court properly denied the GAL’s testimony due to the ethical concerns
The court also properly denied
Ex-Wife’s motion to strike the GAL report. The court appointed the GAL to
counsel the court in formulating a decision. The court has considerable
discretion in this area, and it would have been a waste of resources to
disregard the report. Because of the inherent conflict and potential for
prejudice created by the ambiguity in the statute, the proper role for a GAL in
child custody issues should be scrutinized by the General Assembly or Supreme
Court. A review of the law in other jurisdictions regarding the role of GALs in
custody proceedings did not yield consistent results. Some states prohibit a
GAL from testifying, while other states have statutes explicitly stating the
role of the GAL and the GAL report and under what circumstances a GAL can be
called as a witness and cross-examined. Nevertheless, in this case, the
testimony of the witnesses at the custody hearing was thorough and was relied
upon more than the GAL report in the court’s decision. Any error from allowing
the GAL report to be considered was harmless.
KRS 403.340(3) provides that a court
must not change a prior custody determination, unless there is a change in the
circumstances of the child or the custodian, and the modification is in the
best interests of the child. The Family Court found that Ex-Husband had
increased his visitation, that the older sister had moved away from the home to
live with Ex-Husband, and the relationship between Ex-Wife and the child had
deteriorated. The relocation was in the child’s best interest because Ex-Wife,
Ex-Husband, the older sister, and the child all testified at the hearing, and
each of Ex-Wife’s concerns about the relocation were addressed in the court’s
order. Overall, the court accepted the child’s explanation of the toxic
relationship that had developed between her and her mother.
Judge Denise Clayton wrote
separately, concurring with the result. Judge Clayton stated that it was
improper to admit the GAL’s report because the GAL was the child’s legal
representative. The court reached the correct result, but the parties should
have never been in the position where the child’s legal representative was also
serving as an expert to the court.
denial of DVO on child’s behalf claiming that Kentucky Rules of Civil Procedure
do not apply to DV proceedings and she was denied opportunity to offer proof
during DV hearing.
On 10/28/11, Mom filed for EPO on
Daughter’s behalf. EPO was issued and
Dad was ordered to appear on November 7, 2011.
That hearing was continued due to lack of service on Dad. New Hearing was set for November 21, 2011. Both parties appeared along with the
Cabinet. Cabinet reported their investigation
was not complete, and the hearing was continued several more times until
February 23, 2012, after the Cabinet investigation was complete.
At that hearing, Mom moved for
continuance to obtain certified medical records from University of Kentucky Healthcare. Though she had filed a Notice of Intent to
introduce medical records, University of Kentucky had refused to honor
subpoena, stating the records would not be produced without a court order. Dad
objected, stating that Mom had sought the records without notice to him,
without giving him an opportunity to review the medical records, and therefore
not in compliance with Kentucky Rules of Civil Procedure. Trial Court denied motion to continue. At the conclusion of the hearing, Trial Court
denied the Petition and Mom appealed.
Mom claimed DV proceedings are
statutory summary proceedings to which ordinary Rules of Civil Procedure do not
apply. She argued that DV proceedings
are meant to be expedited proceedings with a specific timeline prescribed by
statute, and this timeline does not provide enough time to comply with Kentucky
Rules of Civil Procedure. CA found that,
as in DNA proceedings, though there is shortened time to hold hearings,
continuances alleviate any injustice this may create. As this case was continued a number of times,
no injustice occurred.
Mom also complained that she was
unable to ask a question of a witness, but as there was no avowal testimony,
this error was not preserved for review.