Divorce Law Journal

Atkisson v. Atkisson, Ky COA, Marital and Nonmarital Property, Fees, Temporary Maintenance, Garnishment and Judgment Lien

Atkisson v. Attkisson and Atkisson v. Atkisson (consolidated appeals, separate opinions) ___S.W.3d____ (Ky App. 2009) and ___S.W.3d____(Ky App. 2009)

Husband appealed the trial court’s division of marital property, award of temporary maintenance, award of attorney fees, and denial of relief to quash garnishment writs and judgment lien.

Marital residence:     Court awarded husband the residence, but awarded all the equity in the residence to the wife as her non-marital property.  Husband argued that the court should have apportioned the equity as set out in Brandenburg.  COA found that while there was marital equity in the residence, even if the husband was credited for that amount, there was insufficient equity to fully reimburse the wife for her non-marital contribution.  Therefore, there was no marital equity to divide under Brandenburg.

Timeshare:    The court ordered that the timeshare be sold.  Wife was to receive $1,522.88 of the proceeds as her non-marital property.  The remaining proceeds were to be divided equally.  Husband argues that the court erred in not taking into consideration the debt associated with the timeshare, which the court assigned to husband.  COA found that debt is part of the current mortgage on the marital residence.  The court deducted the full amount of both mortgages from the value of the residence to determine the equity in the property.  As a result, the court properly considered the debt. 

Temporary maintenance:      Court ordered husband to pay wife temporary maintenance of $2500 per month.  The order included a provision for health insurance and car insurance.  Husband argued that the award was excessive and that wife intentionally remained unemployed.  COA found the trial court had imputed wife with income in calculating temporary maintenance and found no basis to disturb the trial court’s judgment. 

Attorney fees:    Trial court awarded wife $10,000 in attorney fees.  Husband argued that wife not entitled to any fees due to the amount of assets wife received in the judgment.  COA found no abuse of discretion.  Wife only awarded half of the fees she asked for, husband retains a higher earning capacity, and husband received the residence and most of the income producing property. 

Writs of garnishment and judgment lien:  After the trial court ruled on the parties CR 59.05 motions, wife filed non-wage garnishment against three of husband’s accounts and a judgment lien against his real property.  Husband moved to quash the writs and lien as premature, but trial court denied the motion.  COA found that the garnishment writs and judgment lien were not filed prematurely.  The court’s judgment stays in effect until modified, although enforcement is stayed under CR.62.01.  When compliance dates have passed by the time the court denies a CR 59.05 motion, the trial court should allow a reasonable amount of time for the obligor to comply with the original order.  Here, a reasonable amount of time was given. 

Wife’s garnishment of tax-deferred accounts resulted in 10% penalties for early withdrawal, plus taxes and fees.  COA found that the garnishment writs subjected husband to penalties that far outweighed his failure to comply with the court’s orders.  The penalties and taxes imposed on husband changed the overall allocation of marital assets.  COA remanded this issue to the trial court for a determination of the amount of penalties and taxes incurred and an allocation of this amount between the parties. 

    Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Temple v. Temple, Child Custody, Ky COA

Temple v. Temple, ____S.W.3d____(Ky. App. 2009)

Karen is the adopted daughter of Cheryl and Phillip.  At the time of the adoption, Karen was classified as severely emotionally disturbed.  When the parties divorced, Karen remained with Cheryl.  In 2003, at seventeen years old, Karen had a child, N.T.  Karen and N.T. lived with Cheryl for the first twenty months of the child’s life and Karen relied heavily on Cheryl for the support and care of N.T.  Karen later moved into an apartment with N.T., but still relied heavily on Cheryl.  Karen was investigated for neglect on two occasions, but the allegations were not substantiated.  However, social workers testified that N.T. thrived better with Cheryl than with Karen.  In 2007 Karen gave Cheryl written permission to seek medical treatment for N.T. when necessary.  She also agreed that N.T. should live with Cheryl.  In November 2007 Phillip took N.T. for a visit and did not return him.  Cheryl petitioned the court to declare her a de facto custodian and grant her permanent custody, or in the alternative grant her joint custody.  Karen filed a written response, but did not seek custody for herself.  Instead, she argued that her father should have custody. 

    After a hearing, the DRC rendered findings and conclusions of law that were adopted by the trial court.  The court found that Cheryl was not a de facto custodian, since she failed to meet the one year time requirement.  However, the court found that Karen waived her superior right to custody and therefore granted Cheryl sole custody of N.T.  Phillip and Karen were granted shared visitation with N.T. one weekend a month.  Karen was ordered to pay Cheryl $60 per month child support.  Karen appealed. 

    COA affirmed, finding that Karen had waived her superior right to custody by failing to seek custody for herself.  Karen admitted that she did not want custody of her son.  She stated that if she were awarded custody she would give N.T. to her father.  Her testimony was equivalent to an express waiver.    

    Digested bySarah Jost Nielsen, Diana L. Skaggs + Associates

No To Be Published Ky COA Family Law Opinions This Week

We are up-to-date in posting all Kentucky published family law opinions.

No Ky S.Ct. To Be Published Family Law Opinions This Month; Review Granted In One

The Kentucky Supreme Court accepted discretionary review of one unpublished family law case, Noe v. Artrip. The issues are whether a thrift saving plan withdrawal is income for child support calculation and whether a non-custodial, non-disabled parent is entitled to a credit toward his/her child support based on the child's receipt of social security benefit paid on account of the other parent's disability.

Money v. Money, Ky COA, Modification of Marital Settlement Agreements

Money v. Money, ____S.W.3d____ (Ky. App. 2009)

 

Ex-Husband appealed from TC’s order assigning him additional marital debt subsequent to a marital settlement agreement (“MSA”), arguing that MSA was ambiguous and that TC erred by assigning him additional debt, which he alleged was unknown at the time of MSA. On cross-appeal, Ex-Wife argued that MSA was unconscionable.

 

FACTS:

After parties attended mediation with counsel, MSA was entered and incorporated into the decree of dissolution.  MSA provided that Ex-Wife would receive several investment accounts worth over $100K but would assume indebtedness on real estate and balances owed on two credit cards; Ex-Husband was to pay “all other indebtedness.”  It was later determined that there existed a margin loan account with a negative cash balance of $58,469.52, and this

debt was not reflected in MSA. This margin loan account was placed in Ex-Wife’s name as she received the asset securing the debt.  Ex-Wife filed three motions: (1) to transfer the margin

loan account to Gary’s name; (2) to find MSA unconscionable; and (3) to alter, amend, or vacate the judgment. TC granted the motion to transfer the margin loan account. It denied the other two motions, specifically finding the motion to alter, amend or vacate untimely.

 

ANALYSIS:

Ex-Husband argued that MSA is ambiguous regarding the assignment of the margin loan account and must be interpreted against Ex-Wife because her counsel drafted it.

CA found provision that Ex-Husband was to pay “all other indebtedness” unambiguous and that Ex-Husband must pay it per terms of MSA.

 

Ex-Husband next contended that, per CR 59.02 and 59.05, Ex-Wife’s motion to assign the margin loan account to him was untimely because it occurred more than 10 days after the decree of dissolution was entered. CA disagreed, finding that motion was filed to request enforcement of the terms of the agreement as written and therefore there was no time limit on TC’s jurisdiction to do so. On cross-appeal, Ex-Wife argued that MSA was unconscionable because the proportion of the property division is manifestly unfair.  While noting that

An MSA initially approved by TC may be later modified if the party challenging MSA can demonstrate that it has become unconscionable because of changed circumstances, CA found that Ex-Wife did not allege a change of circumstances that rendered the agreement unconscionable and that a mere discrepancy in the amounts received by each party under a settlement agreement is not enough to render the agreement unconscionable. TC affirmed.

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Snodgrass v. Snodgrass, Ky COA, CR60.02(f), Military Retired Pay

Snodgrass v. Snodgrass, __ S.W.3d __ (Ky. App. 2009)

 

 In divorce proceedings, the parties agreed on all issues, except for the division of husband’s military retirement.  Husband served in the military for approximately 4 years prior to the parties’ approximate 14 year marriage.  A hearing was held before a Domestic Relations Commissioner on the division of retirement benefits; however, there is no proof in the record that husband actually received notice of it, waived his right to participate in it, waived his right to have the hearing recorded, or waived any other right or protection on account of his military service.  Husband was deployed overseas during the proceedings and unrepresented by counsel.  The trial court adopted the DRC’s recommendations and awarded the wife 46% of husband’s retirement.  No further activity took place on this matter for over six years.  Eight months prior to husband’s retirement, the wife submitted a form to DFAS requesting 46% of husband’s disposable retired pay, with no distinction between marital and nonmarital portions.  This translated to wife receiving 82% of the marital portion of the benefit and husband receiving 18%.  It was not until his retirement that husband realized something was wrong.  He hired counsel and filed a motion for relief pursuant to CR 60.02(f).  Due to several procedural and substantive delays, husband’s motion was not heard for another year and a half.  The trial court denied his motion, except it did prohibit the wife from receiving any portion of the benefit attributable to husband’s post-divorce increases in rank and pay.  Husband appealed.

    There are three factors that must be met in order to obtain relief under CR 60.02(f):  1) none of the provisions of CR 60.02 (a)-(e) apply, 2) whether the moving party had a fair opportunity to present his claim at the trial on the merits, and 3) whether the granting of relief would be inequitable to other parties.  COA found all three factors weighed in husband’s favor: 1) No evidence supports the applicability of CR 60.02 (a)-(e), 2) Husband lacked the opportunity to be present at the hearing, and 3) Granting relief would not be inequitable to wife because the court had already held that she is only entitled to a share of the marital portion of the retirement benefit and husband did not seek more than that.

    The decree that originally awarded wife 46% of the retirement benefits contained no distinction between marital and nonmarital property.  Therefore, the decree conflicted with the court’s order denying CR 60.02 (f) relief, which states that wife is only entitled to a share of the marital portion of the benefits, and must be corrected.  The decree is also problematic since it did not explicitly first assign each spouse their nonmarital property before dividing the marital property.  As a result, it is unclear what the decree intended the outcome to be for the division of military retirement benefits.  The COA came up with four different possibilities, and narrowed it down to two using logic and the law: 1) the trial court intended to award wife 46% of the marital portion and 0% of the nonmarital portion, or 2) the trial court intended to award wife 46% of the benefit earned up to the point of divorce, but not what husband earned after the divorce.  The COA remanded for the trial court to determine how the decree should be corrected and/or clarified.  The COA referred the trial court to DFAS’s pamphlet entitled Uniformed Services Former Spouses’ Protection Act, Dividing Military Retired Pay for guidance and recommended language.  When dealing with the division of military retired pay of an as-yet-ineligible service member, COA found the language in section IV.c. of the pamphlet regarding “hypothetical awards” to be consistent with Kentucky law. 

Next, COA noted that although husband chose to proceed unrepresented by counsel, he was still protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940.  Thus, even when a service member does not ask for a stay in the proceedings, the Act requires that the trial court determine that the military service of the party would not have a material, adverse effect upon his rights before going forward.                    

Finally, COA did not find error in the fact that husband had not appealed the decree or that he waited years to file a CR 60.02 motion.  The decree on its face seemed to accomplish what husband wanted and he only realized the error shortly before he retired.  Husband promptly acted upon finding the error. 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Two Published Ky COA Family Law Opinions Today

Money v. Money. Investment account had margin debt but agreement allocated account to wife and provided that husband pay all debt except mortgage and two credit cards. In enforcing agreement court assigned margin debt to husband and was affirmed.

Snodgrass v. Snodgrass. Trial court's denial of  CR60.02(f) relief to restore nonmarital portion of military retirement pay was reversed.

Digests to follow. 

 

Crowder V. Rearden, Ky COA, Civil Contempt

Crowder v. Rearden, __ S.W.3d __ (Ky. App. 2009)

    This is a companion appeal to Rearden v. Rearden, No. 2006-CA-002362-MR. 

   

Kimberly Joy Crowder, formerly Rearden, appealed from two orders, in which the trial court found her in contempt for failure to cooperate with the sale of the marital residence and for failure to pay her portion of the mortgage.  The trial court sentenced her to thirty days in jail.  She only served five days with work release and the remainder of the time was probated for two years.  Crowder also appealed the denial of her motion to alter, amend or vacate the contempt orders.  On appeal Crowder argued that 1) the court jailed her solely for nonpayment of the mortgage without determining her ability to pay, 2) her failure to comply with court orders was not the result of disrespect, but rather impossibility, and 3) the court did not require the husband to mitigate his damages. 

    COA affirmed, finding that the trial court was more than patient with Crowder and did not abuse its discretion in finding her in contempt for failing to obey multiple orders.  Crowder was found in contempt for failure to comply with a myriad of court orders, not just nonpayment of the mortgage.  The original order requiring her to pay the mortgage was based on a review of her finances as submitted in the mandatory case disclosure.  Crowder never challenged that order and allowed it to become final.  She also made three full mortgage payments on the residence.  Thus, the record shows she had the ability to pay.

The Court found Crowder’s mitigation of damages argument ironic at best.  She claims that the husband should have paid the mortgage to avoid having the house fall into foreclosure and damage his credit rating.  She made the argument while offering no proof that the husband could access enough funds to pay the full mortgage himself, the same thing she criticized the trial court for doing when holding her in contempt.  Crowder also failed to cite any case law that demonstrates a party is required to mitigate damages so a former spouse could avoid being held in contempt.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ky COA, Jail Sentence For Civil Contempt

 Crowder v. Rearden, decided last Friday, is still not on the minutes. We mention this because the link provided is to a scanned copy which will not automatically be updated. The Westlaw cite is 2009WL3231360.  Digest to follow.

Proposed Amanda Ross Domestic Violence Prevention Act (Kentucky)

Here is the link to the pre-filed bill, BR251, relating to a global positioning monitoring system amendment to Kentucky’s domestic violence statute. It would also permit a petitioner to request that the respondent be prohibited from going to certain designated places requested by the petitioner. Apparently respondents would pay the cost unless unable, in which case approved vendors would bear cost responsibility. The courts would be authorized to conduct a risk assessment to determine whether monitoring would deter future violence.

Rearden v. Rearden, Ky COA, Classification Of Property, Attorney Fees

Rearden v. Rearden, __ S.W.3d __ (Ky. App. 2009)

 

The parties divorced after approximately 6 months of marriage.  No children were born during the marriage.  Thus, the primary issues at trial and on appeal concerned the classification of assets as marital or non-marital property:

 

Down payment on marital residence:  The trial court classified the husband’s pre-wedding down payment of $3000.00 from his personal money market account on the marital residence as marital.  Following the Source of Funds Rule, the COA found that the down payment was an identifiable portion of the purchase price and it was made by the husband prior to the wedding.  However, the husband could not trace the $526.87 refund received from the down payment during the marriage as a result of calculations in the closing documents.  COA held that $526.87 refund was marital property and that the remaining $2473.13 was husband’s non-marital property.

 

The treadmill, dining room suite, and bed/mattress:  The trial court classified these items as marital property since the husband could not sufficiently prove they were purchased with his non-marital funds.  COA agreed. Husband purchased the items with his personal credit card, but paid some of the credit card transactions using funds from the parties’ joint account.  The fact that the wife did not challenge husband’s testimony that he used non-marital funds to buy the items does not equate to an admission by the wife.  Husband still had to meet his burden of proof. 

 

Husband’s military retirement benefits:  The trial court found that since the parties were married for 2 months of husband’s 270 months of service credit, wife was entitled to $8.08 per month for the remainder of husband’s life.  Instead of requiring the husband to make such a small monthly payment to the wife, the court ordered husband to pay the wife a lump sum of $3000.  The court did not give an explanation of how it arrived at the lump sum amount.  COA agreed that the wife would be entitled to $8.08 per month for the rest of the husband’s life and that the trial court had discretion to convert the payments to a lump sum.  COA reversed and remanded for an explanation of how the court arrived at $3000.00 as a fair calculation of the wife’s future interest. 

 

The final issue on appeal concerned whether the trial court erred in not awarding the husband attorney fees after finding the wife to be in contempt of court more than once.  COA affirmed, finding that the trial court is not authorized to consider any other factors beyond the financial positions of the parties when awarding attorney fees.  COA also noted that the husband was awarded attorney fees in the companion appeal, specifically addressing the finding of contempt. 

 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Today's Ky Court of Appeals Published Family Law Opinions

Rearden v. Rearden,  concerning classification of marital/nonmarital property and award of fees in dissolution. A digest will follow. The case mentions a companion contempt appeal considered simultaniously, Crowder v. Readen, but we don't see that one posted in the minutes. We will follow up.

Daunhauer v. Daunhauer, Ky COA, Modification of Maintenance

DAUNHAUER v. DAUNHAUER, ___S.W.3d___ (Ky. App. 2009)

PUBLISHED: REVERSING
ACREE PRESIDING; NICKELL AND SENIOR JUDGE KNOPF CONCUR
COUNTY:JEFFERSON

Ex-Ex-Husband appealed from TC’s order denying his motion to terminate his maintenance obligation, arguing that Ex-Wife was no longer dependent upon that maintenance to meet her needs. 

FACTS:

Ex-Husband and Ex-Wife were married for 21 years.  At time of divorce, Ex-Husband was 48 and working as a dentist, earning $22,000 per year, and Ex-Wife was 42 and working as a secretary, earning $10,000 per year.  Ex-Wife relocated to California before Decree entered.  Parties entered agreement in which Ex-Husband would pay Ex-Wife maintenance of $400 per month, with such amount being modifiable after two years.  TC reduced maintenance to $200 per month after three years, when Ex-Wife’s income as a medical assistant was $26,000 per year and Ex-Husband’s income as a dentist was $36,000 per year.  Five years after that, TC denied Ex-Husband’s next motion for maintenance reduction, finding insufficient change in circumstances.  In 2006, at age 66, Ex-Husband injured himself and needed surgery and physical therapy, so he decided to sell his dental practice and retire.  He filed a motion to terminate maintenance, and although TC found retirement reasonable, TC denied motion as it found parties’ circumstances had not sufficiently changed.  Ex-Husband appealed.

ANALYSIS:

CA held that goal of maintenance award per KRS 403.200 is to facilitate one’s transition from dependence on a former spouse to independence.  CA held that original maintenance award was rehabilitative, and that the most appropriate reason for modification is Ex-Wife’s ability to live independently of maintenance.  Although it is appropriate in some cases to have maintenance not terminate, that occurs only when the claimant’s prospects of self-sufficiency are dismal.  The policy underlying KRS 403.250, requiring a substantial change of circumstances for modification, is relative stability.  CA found these two policies are not at odds.  Because Ex-Husband’s voluntary retirement was reasonable, TC could consider his resulting change of circumstances.  Ex-Wife earned more income than Ex-Husband at time of hearing.  Both parties had expenses in excess of their income.  CA held that if Ex-Wife achieved self-sufficiency, then post-decree increases in Ex-Husband’s income or assets are irrelevant.  Self-sufficiency is determined with reference to standard of living acquired during marriage, not post-decree.  CA also found that TC erred by considering the “relatively small” amount of maintenance and the higher cost of living in California.  If a claimant has achieved self-sufficiency, any amount of maintenance is inappropriate.  Further, since Ex-Wife has sufficient income to meet her needs, the higher cost of living is irrelevant.  CA reversed and remanded. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Mauldin v. Bearden, Ky. S. Ct., Child Custody, CR 60, Continuing Jurisdiction

Mauldin v. Bearden, ___S.W. 3d___ (Ky. 2009)

PUBLISHED: REVERSING
OPINION BY JUSTICE NOBLE; ABRAMSON, CUNNINGHAM, SCHRODER, AND VENTERS, JJ., CONCUR; MINTON, C.J., CONCURS IN RESULT ONLY
COUNTY:

JEFFERSON

Paternal Grandparents appealed from CA decision reversing Jefferson Family Court’s (FC’s) order denying Mom’s motion to set aside FC's judgment awarding permanent custody of Daughter to Paternal Grandparents and her motion for visitation, where FC found that it lacked jurisdiction to consider visitation. 

FACTS: 

At time of Daughter’s birth, Mom and Dad were alcoholics and physically abusive to each other.  Mom had been drunk more than once during her pregnancy and while breastfeeding.  She had also been arrested for PI and DUI during her pregnancy.  Paternal Grandparents filed a petition for temporary and permanent custody and an ex parte emergency motion for temporary custody of Daughter four days after birth of Daughter.  Maternal Grandparents supported the motion, providing an Affidavit regarding both Mom’s and Dad’s unfitness to parent.  FC entered temporary custody order that day and referred the matter to CFC for investigation.    Daughter was immediately taken to Alabama to live with Paternal Grandparents.  CFC subsequently filed DNA action a few days later, which was transferred to same division as custody action consistent with principle of “one family, one judge,” which underlies Family Court, though the actions had and continued to have separate case names and numbers.  The following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. FC reaffirmed its award of temporary custody to Paternal Grandparents.  At a subsequent hearing, Mom and Dad were ordered to participate in a course of rehabilitative treatment and testing and were allowed supervised visitation, though neither ever exercised that right.  Neither Mom nor Dad filed a responsive pleading during this time.

Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed   a response. FC entered a default judgment granting Paternal Grandparents permanent custody.  The supervised visitation order from the DNA proceeding remained in effect, but as CFC was taking no further action, there was no termination of parental rights that would have prevented the ordered visitation.  Mom and Dad were still living together.  Paternal Grandparents then initiated proceedings in Alabama, then the home state of Daughter, to formally adopt Daughter. Daughter had then been living there for nearly a year. Alabama entered temporary decree granting custody to Paternal Grandparents and set a dispositional hearing.  Mom participated in the Alabama proceeding through counsel.  She then filed a motion with Jefferson Family Court (FC) under case numbers for both custody and DNA actions, but noticed only for DNA docket, asking for custody of Daughter.  FC denied her motion as improper on DNA docket.

Mom then filed a motion to set aside the default judgment entered against her and to set a custody hearing, pursuant to CR 60.02(d) and (f). In support of her motion, Mom did not provide a Memorandum but filed affidavits signed by herself, Dad and Maternal Grandparents. Mom's affidavit stated that she believed Dad and Paternal Grandparents had conspired with Dad to prevent her participation; that Dad’s threats of abuse and her lack of access to vehicle or phone prevented her from participating in the permanent custody hearing; and that she otherwise would have defended herself, though she did not provide the basis for her defense.  Dad corroborated the abuse and conspiracy.  Maternal Grandparents stated that Mom was now capable of having custody of Daughter.   

After reviewing rebuttal affidavits and hearing the arguments of counsel, FC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents or collusion occurring between Dad and Paternal Grandparents and that Paternal Grandparents had done nothing wrong in their pursuit of custody of Daughter. FC noted that Mom and Dad stipulated in DNA proceeding that Daughter was at risk of neglect due to their alcohol abuse.  FC agreed that it had jurisdiction, but that that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02.  FC denied Mom's motion to alter, amend or vacate, declining to exercise jurisdiction and deferring the visitation issue to Alabama as the home state of the child.  Mom appealed.  CA reversed, vacated and remanded, holding that affidavits submitted by Mom alleged facts that, if true, demonstrated fraud justifying vacation of the judgment, and that FC should hold a full evidentiary hearing with testimony.  CA also found that Kentuckyhad continuing jurisdiction under KRS 403.824, but did not address the fact that FC expressly declined jurisdiction. 

Questions:

Did FC properly deny Mom’s CR 60.02 motion without conducting full evidentiary hearing on fraud allegations?

Does FC have continuing exclusive jurisdiction such that it must make decisions regarding visitation? 

Analysis:

CR 60.02:

SC found that given what FC judge had from affidavits, record, and what he knew from case, he had sufficient information to determine facts and judge credibility of parties without taking further testimony.  FC was well within its discretion to take allegations on their face, and determine if further proof was necessary, as specificity of fraud allegations would be fleshed out by further testimony but not fundamentally changed.  FC judge had already had numerous contacts with parties to judge credibility of the affidavits.  Also, as a policy matter, FC’s decision spared family further turmoil from redundant testimony.

SC further found that Mom did not have nor did she allege defense at time of default judgment, as required by CR 60.02, and that although abuse and addiction are factors that are proper for a court to consider, neither standing alone equate to “facts of an extraordinary nature” required to be present under CR 60.02.  

Continuing Jurisdiction:

SC found that FC did have jurisdiction over actions concerning Daughter because she was born in Kentucky

and had resided here the entire eight days of her life when action was filed. 

SC nonetheless noted several procedural errors.  Paternal Grandparents filed Petition for custody under KRS 403.828, 403.270, and 405.020.  However, none of those statutes were applicable to Paternal Grandparents at that time. KRS 403.270 and KRS 405.020 applied to parents and/or de facto custodians and, since Paternal Grandparents had not had physical custody of nor provided financial support for Daughter for previous 6 months, they were not de facto custodians.  KRS 403.828 grants emergency jurisdiction to Kentucky when a child is brought in from another state that has jurisdiction over the child but is not exercising it.  As Daughter was resident of Kentucky at the time, this statute did not apply. 

SC noted that Paternal Grandparents could have filed a DNA petition under KRS 620.070 and FC could have issued emergency custody order to Paternal Grandparents under KRS 620.060, but that this order would only have been effective for 72 hours and that temporary removal hearing with full notice to both parents would have had to be held during that time.  That did not occur in this case.  Only when FC “renewed” its temporary custody order and ordered supervised visitation for Mom and Dad in the DNA docket did Paternal Grandparents have full legal custody.  FC should not have refused to hear Mom’s motion to modify custody orders just because Mom filed in the DNA action rather than the KRS 403 action.  SC opined that “it makes little sense… to continue to treat this subject matter as separate actions, if the purpose of the family court system is ‘one family, one judge,’” and that, “one a legitimate party properly invokes the court’s jurisdiction…continued compartmentalization of the proceedings—before the same judge—works only to disadvantage some litigants without a sound reason for doing so.”  SC nonetheless found that these problems did not affect the ultimate outcome, for when Kentucky declined to exercise jurisdiction and deferred to Alabama, proper UCCJEA provisions were followed regarding custody and visitation.  Moreover, UCCJEA does not apply to adoption proceedings and FC could make no ruling affecting Alabama

adoption proceeding.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Goldstein v. Feeley, Ky. S. Ct., Jurisdiction, Writs of Prohibition and Mandamus

Goldstein v. Feeley, __ S.W.3d __ (Ky. 2009)

A limited Decree of Dissolution was entered in 2003, dissolving the marriage of Ruby JoAnn Young-Layer and Robert James Layer and reserving the remaining issues, including the division of marital property, for future determination. In 2006, Robert died.  No property issues had been resolved.  Upon the wife’s motion, Robert’s estate was substituted as the real party in interest in the dissolution matter.  In March 2008, on the wife’s motion, the court entered a restraining order to prevent Appellant from transferring any interest in the estate’s assets without court order or agreement of the wife.  Appellant then filed motions to set aside the restraining order and to dismiss the dissolution action for lack of personal jurisdiction.  The court denied his motions.  The wife then asked the court for a temporary injunction in place of the restraining order.  Before the court could hold hearing on the matter, Appellant petitioned the COA for a writ of mandamus and prohibition. The COA denied the petition on the grounds that Appellant had an available remedy through an interlocutory appeal of the injunction.

SC affirmed.  Such writs are authorized in two circumstances: 1) where a court is acting out of its (subject matter) jurisdiction, and 2) where the lower court has jurisdiction but is proceeding erroneously and there is no adequate remedy by appeal. Because the question of personal jurisdiction is reviewable on appeal, writs are unavailable to litigants claiming lack of personal jurisdiction.  Therefore, the COA correctly denied Appellant’s writ.  Regardless of the question of personal jurisdiction, the trial court retained in rem jurisdiction to determine the nature and extent of the marital property and the authority to equitably divide it.      

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates