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.
D.L.B. v. Cabinet for Health and Family Services, et al Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion.
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.
Posted by Diana L. Skaggs in Attorney Fees, Case Law - Kentucky, Child Abuse and Neglect, Child Support, Civil Procedure and Local Rules, Debt Division, Grandparent Visitation, Maintenance , Marital Property, Nonmarital Property, Termination of Parental Rights | Permalink | Comments (0) | TrackBack (0)
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.
Termination of parental rights affirmed.
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.
Nesselhauf 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.
Ruby v. Scherzer, attorney fee lien statute (KRS 376.460) is not applicable in dissolution actions.
Digest to follow.
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.
Digest to follow.
M.L.C. 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.
McFella v. McFella - Court may take into account parents’ timesharing in deciding the amount of child support to be paid, but it is not mandatory.
http://opinions.kycourts.net/sc/2012-SC-000737-DGE.pdf - Where appeal of DVO not timely filed trial court’s denial of CR60.02 motion affirmed.
Digests of these two opinions from Ky Supreme Court to follow.
Ciampa 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.
Digest to follow.
Bjelland v. Bjelland, where mother did not request court to make additional findings, order requiring her to share in cost of non-mandatory field trip cost was affirmed.
Digest to follow.
From July 26, 2013: Ensor v. Ensor. The Opinion of April 12, 2013 was withdrawn and this opinion substitued. This is the case concerning the Grantor Retained Annuity Trust (GRAT).
Muir v. Muir. Restoration of nonmarital property, division of mailital property in just proportions, attorney fees.
There were no published family law opinions released on August 2, 2013. Digests to follow. Eventually.
Triplett v. Triplett, coverture fraction of pension upheld where appellant failed to preserve subtraction or bright line arguments in trial court.
Ipock 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.
Seay v. Seay, Emancipation of one child triggers review of child support without regard as to whether the new amount is 15% greater or lower.
Digests to follow. Eventually. Running behind.
Hicks v. Halsey, digest to follow.
v. Dickens. Digest to follow.
Buddy Lee Bailey v. Linda Beth Bailey, No. 2012-CA-000508-MR
Husband 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.
When the 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.
Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates
v. Bailey, digest to follow.
Larry James Ensor v. Deborah Lynn Ensor, 2010-CA-001660-MR, 2010-CA-001699-MR and 2010-CA-002048-MR
Published: Affirming in part, Reversing in part, and Remanding
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.
The court 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:
The Court 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.
The Court 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.
Husband 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.
Wife 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.
Wife also 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.
On the 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.
Affirmed in part, reversed in part and remanded.
Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates
ISSUE: 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.
Mother 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 Mother’s maneuverings. The Family Court entered an order following a hearing on a paternity complaint by Putative Father.
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 pregnant.
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
Chauncey J. Tudor v. Melanie K. Tudor, No. 2012-CA-000110-MR
Published: Reversing and Remanding
Husband and 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.
In 2011, 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.
The issue 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.
The trial 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.
Judge Maze 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.
Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates
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 counseling.
The Family Court found that a litany of grounds justified the termination of parental rights, and that finding was not clearly erroneous.
Wahlke v. Pierce, No. 2012-000022-ME
Published: Reversing and Remanding
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 jurisdiction.
Reversed and remanded.
Morgan v. Getter, 2012-CA-000655-ME
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 appealed.
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 presented.
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.
Wolfe v. Wolfe, 2012-CA-000578-ME
To Be Published: Affirming
Mom appeals 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.
Wolfe v. Wolfe, digest to follow.
Wahlke v. Pierce, UCCJEA. Digest to follow.
Hughes v. Hughes, 2012-CA-000077-ME
Ex-Husband appealed FC’s order denying his CR 60.02 to terminate child support for child not biologically related to him.
While Husband was serving in the Navy, Wife filed for divorce. Paternity of the four minor children was not placed an issue in the petition. Subsequent to the filing of the petition, but prior to entry of the decree, the parties submitted privately to paternity testing of the youngest child. The Decree of Dissolution was entered prior to the parties’ receipt of the result of the paternity test. The Decree ordered child support for all four children. Subsequently, the parties received the results of paternity testing indicating that the youngest child was not the biological child of Ex-Husband. Ex-Husband continued to pay full amount of child support. Some years later all four children learned that Ex-Husband was not youngest child’s biological father.
All of Ex-Husband’s biological children were emancipated by 2010. Ex-Husband nonetheless continued to pay the full amount of child support for his unemancipated, not biologically related child. Ex-Husband’s income had increased substantially at this time, while Ex-Wife was receiving state assistance due to her status as a full-time student with a part-time job. Thus, in 2011, the Cabinet filed a motion to intervene and to modify child support on Ex-Wife’s behalf. In response, Ex-Husband filed a CR 60.02 motion to terminate child support based on emancipation of his three biological children and the fourth child being not biologically related. FC denied 60.02 motion, finding that it was not filed within a reasonable time, and Ex-Husband was therefore estopped from seeking relief from his child support obligation. FC also increased child support from $863.64 to $1,009.00 per month for the nonbiologically related child.
“Reasonable time” requirement of CR 60.02 is within FC’s discretion. Given that Ex-Husband had known since 2001 that he was not the biological father of the youngest child but continued to act as her legal father, FC did not abuse its discretion in denying his motion. Further, it was not necessary for FC to consider whether doctrine of paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion. CA held that FC correctly ascertained that the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for the payment of child support. It is in youngest child’s best interest for her legal father, Ex-Husband, to contribute adequate child support and supportive parenting.
Shafizadeh v. Shafizadeh, 2010-CA-000758-MR
Issue: jurisdiction, findings of fact, imputation of income, attorney fees, modification of child custody and timesharing, garnishments, CR 60.02
Published: Affirming in Part, Reversing in Part, and Remanding
In three separate appeals, Ex-Husband appealed numerous orders of FC.
Parties were married for twenty-six years, and at time that Wife filed for dissolution, they had two minor children and two adult children. Wife worked as a bank manager during the marriage but left that employment in 2005 to provide full-time care for the parties’ children. Husband is a businessman and a licensed attorney. During the marriage, Husband incorporated three different businesses, including his law firm. In 2007, his income from the businesses was $40,000. The parties entered a Marital Settlement Agreement dividing these assets, and Husband was required to make a cash equalization payment to Wife as a result. They also entered a custody agreement in which they shared joint custody and a parenting schedule. A trial was held on child support, maintenance, and division of the remaining marital property. FC divided the value of the remaining marital assets equally between the parties, restored two nonmarital assets to Wife, and allocated debt. FC also awarded Wife $750 “open-ended” monthly maintenance and attorney’s fees of $6,412. Lastly, FC concluded Husband was voluntarily under-employed, imputed earnings to him of $60,000 per year, and set child support at $859 per month.
ISSUES AND ANALYSIS:
Before FC issued its opinion, Husband filed petition to disqualify judge. FC subsequently entered its opinion, and SC later denied Husband’s petition. Husband claimed because petition for disqualification was pending when FC issued its opinion, FC had no jurisdiction at that time. CA held that while petition was pending, FC lacked jurisdiction over the particular case (but not subject matter jurisdiction), rendering FC’s opinion premature, and voidable, depending on the outcome of SC’s opinion. As SC denied the petition, the opinion and order was given full force and effect.
Dissipation and Request for Findings of Fact:
Husband claimed FC failed to consider and issue findings regarding funds Wife spent on Christmas gifts, in loans to relatives, and for household expenses and maintenance. Wife contended FC adequately addressed all issues in its order, and even if not, Husband failed to address this complaint in his Motion to Alter, Amend or Vacate. CA agreed with Wife that because Husband failed to raise the issue in his CR 59 motion, he could not raise it on appeal.
Husband claimed that because Wife received $529,301 in marital assets plus her nonmarital assets, she did not lack sufficient property to provide for her reasonable needs; furthermore, he claimed that she is able to support herself through reasonable employment; therefore, she should not be awarded maintenance. CA found FC’s findings were supported by substantial evidence regarding the entitlement to and the amount of maintenance, but agreed with Husband that FC erred in awarding “open-ended” maintenance, holding that such an award thwarts the goal of severing all ties between the parties. This issue was remanded to FC.
Child Support and Imputation of Income:
FC found that Husband operated businesses that do not appear to make a profit and that he earned more than was reflected on his tax returns, and also took note of his earning capacity as an attorney. Husband claimed that FC erred by basing its opinion on the business’ profitability in the past. Wife countered that Husband chose not to use his skills and education and concentrated his efforts on non-profitable businesses and chose not to accept legal clients. CA held that although Husband’s businesses may not be currently profitable due to the economy, he was not fully using his entrepreneurial and business skills and could earn more in the legal industry.
Husband claimed no imbalance of financial resources existed to support attorney fee award. CA disagreed, noting difference in incomes and distribution of debt.
Modification of Child Custody and Timesharing:
1. Wife sought to relocate to Louisiana with minor children and filed Motion to modify parenting time schedule. FC granted Wife’s motion. Husband filed writ petition with SC claiming Wife’s motion was actually motion for change of custody that lacked requisite affidavits, relying on Brockman v. Craig, though SC overruled Brockman to the extent it was inconsistent with Pennington. SC rejected Husband’s writ and CA did as well.
2. Husband filed motion to modify joint custody or, alternatively, modify time-sharing, while Wife’s motion regarding relocation was pending. Attached to Husband’s motion were 4 affidavits and 2 declarations. FC denied his motion, finding that it was filed in less than 2 years from the original order and was missing the requisite 2 affidavits. CA held that declarations could not meet the affidavit requirement because they were not sworn testimony. CA held that FC erred in dismissing the motion for lack of jurisdiction, however, as at least 2 affidavits were submitted. CA directed FC, on remand, to determine whether affidavits state sufficient facts to justify a hearing on the motion.
Wife sought garnishments for attorney fee award. Husband claimed his bank account could not be garnished because it held only his wages. CA disagreed, holding there is no statutory protection for wages placed in the debtor’s control/possession. Husband also requested and was denied sanctions and attorney fees because his social security number was included on the garnishment orders. CA held this decision was within FC’s wide discretion, and FC did not abuse such discretion. Lastly, as Husband filed his motion pro se, there were no attorney fees to recoup.
Husband filed CR 60.02 motion to correct attorney fee award, claiming $945 of the award was incurred by Wife’s attorney in responding to Husband’s EPO appeal, in which CA did not grant Wife’s request for sanctions; therefore, Husband claimed, FC could not award attorney fees to Wife related to that appeal. CA noted that a chief factor guiding the grant of CR 60.02 relief is the moving party’s inability to present his claim prior to the entry of the order sought to be set aside. CA held that Husband could have and should have raised this issue in his direct appeal of the order awarding attorney fees.
Affirmed in Part, Reversed in Part, and Remanded.
C.J.M. v. Cabinet for Health and Family Services, Commonwealth
of Kentucky, in the interest of C.K.A., an infant
C.F.A. v. Cabinet for Health and Family Services, Commonwealth
of Kentucky, in the interest of C.K.A., an infant
Published: Opinion Affirming
C.J.M. (“the mother”) and C.F.A. (“the father”) appeal in separate cases from the order and judgment of Garrard Circuit Court terminating their parental rights.
C.K.A. (“the child”) was born on May 10, 2010 to the parties who lived together but were not married. On June 1, 2011, the Cabinet for Health and Family Services of the Commonwealth of Kentucky (the Cabinet) filed a petition for involuntary termination of the parental rights of both the mother and the father. Shortly after the child’s birth, she tested positive for marijuana. During a home visit at the parent’s residence on May 19, 2010, the worker and a colleague observed a large amount of beer cans and beer cases under the porch, and determined that the child did not have a crib or bassinet.
The mother admitted using marijuana during and prior to pregnancy and disclosed that she had two other children from a different relationship who were placed with their father in Ohio that she had not seen in a long time. The father objected to taking a drug test, admitted marijuana use and stated he was not going to stop. The Cabinet workers were concerned about their own safety because of the father’s erratic behavior. The child, pursuant to an emergency custody order, entered foster care. The father’s aunt was given temporary custody, but when difficulties arose, the child was placed with a foster family with whom she still resided at the time of the trial.
At an adjudication hearing in August, 2010, the court found that the father neglected the child and the mother had stipulated to neglect. The family court entered a disposition order and adopted the Cabinet’s case plan. Both parents and the child were appointed counsel, but the parents fired their appointed counsel during the dependency proceedings. Counsel was reappointed for the termination action. Both parents also filed civil rights action in Garrard Family Court and United States District Court, all of which were dismissed. During the dependency action, the Cabinet prepared several case plans requiring certain actions by the parents and payment of child support from each of them.
Subsequently, the father become increasingly hostile and resisted working the Cabinet’s case plan while the federal case was pending. In September, 2010, the father requested waiver of further court appearances and waiver of reasonable efforts to reunite him with the child. In October, 2010 the mother went to a domestic violence shelter and stayed about one month. In February, 2011, the father was arrested and charged with terroristic threatening against a Cabinet worker and her supervisor. He pled guilty and was ordered to have no contact with the worker or her supervisor.
On April 1, 2011, the family court held the annual permanency planning required by the statute and, after consideration of the parents’ progress, changed the goal for the child from reunification to adoption. On June 1, 2011, the Cabinet filed a petition for involuntary termination of parental rights and the trial was conducted February 7, 2012. At trial, the Cabinet testified that the child was doing well, had been in foster care approximately two years, and the foster family wanted to adopt her if given the opportunity. The mother testified that the Cabinet failed to use reasonable efforts to reunite the child with her. She described her various difficulties with transportation, finances, and communication, and discussed her failure to complete tasks related to her own case plan. The father testified that termination of his parental rights was not warranted because the Cabinet did not use reasonable efforts to reunite him with the child.
On February 27, 2012, the Garrard Circuit Court entered Findings of Fact, Conclusions of Law, and an Order Terminating Parental Rights and Judgment. The Order explained that both parents had abandoned the child for a period of at least 90 days, had failed to make adequate efforts in the child’s best interests so she could be returned to their custody, had failed to protect the child’s right to a safe, nurturing home, and finally it was in the child’s best interest to terminate the mother's and father’s parental rights. Pursuant to KRS 600.020(1), the child was abused and neglected. The family court thus determined that under KRS 625.090, it had been established by clear and convincing evidence that the parents were not providing a safe, nurturing home, and there was no reasonable expectation of significant improvement in the immediately foreseeable future. Both parents appealed from these orders and are separately represented.
Both parents argue that the Cabinet failed to make reasonable efforts to reunite the child with them and that they were without effective assistance of counsel during critical phases of the juvenile case. The Cabinet’s position is that clear and convincing evidence supported the termination and the parents waived representation during the dependency proceedings.
KRS 625.090 provides the statutory direction for a circuit court to involuntarily terminate parental rights. There must exist at least one of the ten factors enumerated in the statute. Further, the Cabinet must make reasonable efforts to reunite the child with the parents. The Court of Appeals found sufficient evidence to remove the child from the home to ensure her safety. The child tested positive for cocaine at birth and both parents admit they used marijuana before and during the pregnancy. Neither parent had seen the child for more than one year, they were not working on the case plan, and both had child support arrearages.
With respect to the Cabinet’s obligation to make reasonable efforts toward reunification of the family, the Court of Appeals found that the mother was offered many services associated with her case plan, but did not avail herself of them. Likewise, the father ignored efforts to work toward reunification and chose not to see the child. On the issue of failure to provide effective assistance of counsel, the Court of Appeals noted that the parties dismissed their respective counsel during a portion of the dependency action. The Court of Appeals found that neither party had proven that their decision to be unrepresented occurred at a critical stage.
The Garrard Circuit Court’s order terminating the parental rights of the mother and the father is affirmed.
Oakley v. Oakley, 2011-CA-001410-ME
Published: Striking Appellant’s Brief and Dismissing Appeal
Dad’s counsel filed Notice of Appeal from FC’s verbal order at hearing denying his motion to remove supervised parenting time restriction, inter alia. FC entered its written order one week after the hearing, and only one day after Dad filed his Notice of Appeal. CA recognized that courts speak only through written orders and that Dad should have appealed from the written order or amended his original notice to include the written order. Because he did neither, there was no order for CA to review, and appeal was dismissed for lack of jurisdiction.
CA also pointed out that Dad’s brief was not in compliance with CR 76.12 due to omission of pinpoint citations to written or video record and to omission of statements of error preservation, even after Dad was given an opportunity to submit a second brief; so brief was stricken.
Digest to follow.
Fortwengler v. Fortwengler, 2011-CA-0018933-MR and 2011-CA-002077-MR
Ex-Husband appealed FC’s order terminating his garnishment of maintenance payments to Wife for satisfaction of debt to Ex-Husband’s father as well as FC’s order denying Ex-Husband’s parents’ motion to be joined as parties to the dissolution action in order to collect the debt.
When parties divorced, FC ordered that $20,000 owed to Husband’s father was a marital debt and that each party should be equally responsible. Ex-Wife appealed from this order. While the appeal was pending, Ex-Husband filed a non-wage garnishment against Ex-Wife to collect the debt, in the amount of $1,200, the monthly amount of maintenance he had been ordered to pay to her. Ex-Wife filed motion to quash the garnishment and an affidavit challenging the garnishment, contending that FC did not have jurisdiction of the issue as an appeal was pending, that no judgment had been issued to Ex-Husband’s parents because they were not parties to the case and did not have standing, and that Ex-Husband was attempting to evade his maintenance obligation. Ex-Husband responded that FC did have jurisdiction because Ex-Wife had not posted supersedeas bond and that FC should set a hearing on the challenge to the garnishment. After hearing, FC granted Ex-Wife’s motion to terminate the garnishment, noting that no common law judgment has been entered nor had a separate lawsuit been entered by Ex-Husband’s parents; that they could not assign the debt to Ex-Husband to be collected in the dissolution as it appeared to be an attempt to circumvent his maintenance obligation. Ex-Husband filed a timely appeal of this order. Subsequently, Ex-Husband’s parents filed a motion to intervene in the divorce proceeding for the limited purpose of setting a payment schedule in order to effectuate Ex-Wife’s payment of her portion of the debt. FC denied the motion and Ex-Husband timely filed an appeal of that order.
CA noted that Ex-Husband’s frequent iteration of the phrase “this assignment of error was preserved for appellate review” is insufficient to identify preservation of issues in the record as required by CR 76.12(4)(c)(v), but nonetheless proceeded with review on the merits.
CA disagreed with Ex-Husband’s contention that because the creditor, his father, testified regarding the debt and the debtor, Ex-Wife, had an opportunity to cross-examine the creditor and raise any defenses she may have, his father should not have to obtain a judgment in separate proceeding, and that FC could have joined his father as a party to the case for this purpose under KRS 403.150(6). CA found the additional parties to be jointed referenced in that statute would not be third-party creditors, but rather parties who may have custody rights to children of the parties. The proper method for Ex-Husband’s father to collect on the debt is through a common law judgment or through a separate lawsuit. Regarding his father’s motion to intervene, CA held that denial of the motion was proper as no attempt had been made by Ex-Husband’s father to collect the debt via common law judgment or separate lawsuit.
Shafizadeh v. Shafizadeh, jurisdiction, marital property, attorney fees, relocation and modification of custody, discharge of orders of garnishment, personal data identifiers and CR60. 44 pages.
Digest to follow.
Published: Opinion Affirming
Sandra Spreacker appeals from an order of Greenup Family Court which determined that Denise Vaughn, the paternal Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.
In July, 2010 while baby-sitting B.C., Vaughn noticed severe diaper rash. She contacted Spreacker who requested that B.C. be returned home the next day. The next day, however, Spreacker was arrested. The child’s father was already incarcerated. Although Vaughn had physical custody, she did not have legal custody, so she filed a petition for juvenile dependency, neglect, and abuse in Boyd County.
On July 7, 2010, Boyd District Court granted emergency custody to Vaughn and granted her custody after a temporary removal hearing on July 12. On July 27, Vaughn amended her petition to allege B.C. was medically neglected. After an adjudication hearing on September 14 during which B.C.’s parents admitted to neglect, the court ordered B.C. to remain in Vaughn’s custody.
On January 3, 2011, Vaughn filed a petition for custody in Greenup, her home county. At a hearing on May 3, 2011, the Greenup Family Court found that Vaughn was a de facto custodian and awarded her custody of B.C. This appeal followed.
The Greenup Family Court found that B.C. continuously resided with Vaughn who made sure the child received all necessary medical procedures and Vaughn was the primary financial supporter. B.C. had a Kentucky medical card before custody was awarded to Vaughn and received money from Kinship Care which merely covered daycare expenses. Spreacker argues that Vaughn was not the primary financial support because of these benefits. The Court of Appeals disagreed and said the government benefits only supplemented what Vaughn provided and the benefits did not supplant the primary support of the child.
The Court of Appeals distinguished this case from those involving foster parents, who receive support from the Cabinet. B.C. was never in the custody of the Cabinet and Vaughn is not a foster parent. KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole” caregiver and financial supporter.
The Court of Appeals found that because the child is under the age of three and was never “placed” by the Cabinet, the statutory criteria was satisfied. Moreover, the CA held that because Spreacker did not commence a separate action to regain custody, she did not toll the calculation of the statutory time for establishing a de facto custodian.
Truman v. Lillard, 2012-CA-000160-ME
Former life-partner of Child’s adoptive mother appealed from FC’s denial of her motion for joint custody, visitation and to set child support due to lack of standing.
Truman and Lillard were in a marriage-like relationship for four years prior to Lillard obtaining temporary guardianship of her six-month-old nephew, Thomas. Truman and Lillard had discussed plans to start a family, but at that time were waiting to do so as they were both full-time students. However, because Thomas was her nephew and needed a healthy home, Lillard began the adoption process, which was finalized in 2008. The couple was aware that they could not legally jointly adopt Thomas in Kentucky. Although Truman assisted in raising Thomas as one of his “Mommies”, no steps were taken to establish parenting rights for her. In February 2010, the couple broke up and Truman left the Mississippi home she shared with Lillard and Thomas. After a domestic dispute in which Truman attempted to take Thomas, Lillard moved to Lexington with Thomas, obtained a restraining order against Truman, refused further communications from her, and refused to allow her to spend any time with Thomas. Truman filed a petition for joint custody and visitation and volunteered to pay child support. In October 2010, the parties agreed to a visitation order. Lillard subsequently relocated again, to Bowling Green, and sought a transfer of the case to Warren FC based on her new address, which was denied. In November 2010, Fayette FC held a hearing based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer. FC orally found she had not, though no written orders were entered. In August 2011, Truman petitioned the court for a status hearing and for written orders on the waiver issue. FC did so, finding Lillard had not waived her superior right and that Truman had no custodial rights, and denied Truman’s request for visitation and for a new trial. Truman appealed, arguing that FC erred by: 1. Failing to transfer the matter to Warren FC; 2. Failing to make sufficient findings of fact on visitation; 3. Incorrectly relying on Picklesimer regarding visitation; and 4. Entering findings of fact not supported by the evidence.
CA disagreed with all of Truman’s contentions. First, Truman’s argument regarding transfer to Warren FC was completely inconsistent with her actions in Fayette FC, and CA held she was judicially estopped from challenging FC’s action which was consistent with her requested relief.
Regarding the sufficiency of findings on visitation, CA held that FC did make findings in this regard and that FC is not required to address every piece of evidence or argument by counsel for findings to be sufficient. So long as FC’s findings reflect a good faith effort at fact-finding and complies with CR 52.01, the findings will be sufficient. CA found that FC’s findings did so and were sufficient.
Next, CA addressed whether FC should have relied on Picklesimer on the visitation issue or if it should have applied the in loco parentis doctrine. CA noted that this reliance was appropriate and that the in loco parentis doctrine has been replaced by the de facto custodian statute; thus, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the legal parent has waived her superior right to custody, or if the parent is unfit.
Lastly, CA disagreed with Truman’s contention that the findings of fact relative to custody were not supported by the evidence. CA held, “Although we appreciate the substantial and significant relationship Truman had with Thomas, she was not his parent, she could not qualify as a de facto custodian, and he resided with his only parent, Lillard. … This case serves as an illustration of the exception to Mullins, where we distinguish a non-parent truly acting in the capacity as a parent from the many people who may love, care for and support a child . . . . Not every person who genuinely loves and cares for a child gains custodial rights; waiver requires significantly more. There was no error.