One family law decision designated to be published was issued today, Hibdon v. Hibdon, online here. It's an important case involving valuation of a defined benefit pension which we will digest and post after the holidays.
There are no new to be published family law cases among those released today. However, the minutes reflect that discetionary review was granted in Com. and AJM, a child v. TG, mother, digested here. Discretionary review was denied in Lane v. Caudill-Lane, digested here and the Court of Appeals opinion was ordered not to be published. Finally there's a family law to be published disciplinary decision online here. We will digest it and post after the holidays, not because this is an ethics blog but because it is an important decision for family lawyers, not only for the all too common failure to communicate but for the issue of searching a title before recording an attorney fee lien against real estate.
11:45 a.m. Melanie Straw-Boone “QDRO Tips for Lawyers to Put in Agreements and
Courts to Put in Judgments”
12:30 p.m. Adjourn
Lynne Z. Gold-Bikin, Norristown, PA, has authored numerous books in the field of Family Law and has authored and co-authored numerous articles, including The Divorce Practice Handbook, Michie, 1994; and The Divorce Trial Handbook. She was also Assistant Editor of Pennsylvania Family Lawyer, 1980-83. She has been a lecturer in law at various law schools and is an Adjunct Professor at University of Houston, School of Law.
Ms. Gold-Bikin has served on the ABA Board of Governors: she has served as an Advisor to the American Law Institute, Family Law Project; Chairperson of the American Bar Association, Family Law Section (ABA/FLS), 1994 to 1995; ABA House of Delegates, Delegate at Large, 1995 to present; Montgomery County Bar Association Board of Directors, 1992 to 1995; Chairperson of the Pennsylvania Trial Lawyers Association, Family Law Section, 1988 to 1990; Commissioner, ABA, Commission on Domestic Violence; Pennsylvania Future Commission on Justice in the 21st Century. She is on the Editorial Board of The Matrimonial Lawyer and has served on the Editorial Boards of Family Advocate, FariShare, The Practical Lawyer,
She is a fellow of American Academy of Matrimonial Lawyers; International Academy of Matrimonial Lawyers, the American Academy of Matrimonial Law Foundation, and American College of Matrimonial Trial Lawyers.
Jonathan W. Gould, PhD, Charlotte, NC, practices forensic psychology with a specialization in issues related to family law, including child custody, and is board certified in forensic psychology by the American Board of Professional Psychology. He performs court-appointed custody evaluations and consults with attorneys and psychologists in the areas of child custody and professional ethics and standards. Dr. Gould also consults with attorneys in the areas of criminal child sexual abuse and other forms of child maltreatment.
His books include Child Custody Evaluations and Child Maltreatment, Guilford Publishers, (under review), Conducting Scientifically Crafted Child Custody Evaluations, 2nd Edition, Professional Resource Press, (in press), Clinicians in Court: A guide to subpoenas, depositions, testifying and everything else you need to know, Guilford Press, (2002), Conducting Scientifically Crafted Child Custody Evaluations, Sage Publications (1998).
Gary L. Nickelson, Ft. Worth, TX, is the president elect of the American Academy of Matrimonial Lawyers and is a frequent author and lecturer for the AAML, State Bar of Texas, and other organizations.
Melvin Frumkes, Miami, Fl, is a past President of the Florida Chapter of the American Academy of Matrimonial Lawyers and is Associate Editor of the Journal of the American Academy of Matrimonial Lawyers. He is past chairman of the Family Law Section of The Florida Bar. He has been on the faculty of the National Judicial College in Reno, Nevada for 18 years where he taught Divorce Taxation. He is on the Board of Editors of the Journal of the American Academy of Matrimonial Lawyers, and the Family Advocate (ABA, Family Law Section) and was a contributing Editor to Fair$hare. He is Board Certified in Marital and Family Law by The Florida Bar.
Mr. Frumkes was elected to membership in the American Law Institute in 1990 and served as a member of the Consultative Group to its project to develop Principles on the Law of Family Dissolution. He is a Diplomate of the American College of Family Trial Lawyers and a Fellow of the International Academy of Matrimonial Lawyers.
He has been listed in the Best Lawyers in America since its inception in 1983.
His book Frumkes on Divorce Taxation, James Publishing, Inc., is an indispensible resource for every family law library.
Steven Kriegshaber, Louisville, KY, is a past President of the Kentucky AAML Chapter and past Chair of the Louisville Bar Association Family Law Section. He is the author of “Representing Children in Divorce Litigation,” The Advocate, July/August 1997, and for many years was a member of the AAML Special Concerns of Children Committee.
Melanie Straw-Boone, Louisville, KY (a/k/a “QDRO Queen”), is Membership Chair of the AAML Kentucky Chapter. She is past chair of the Lousiville Bar Association Family Law Section and current chair of the LBA Pro Bono Consortium. She is a partner in the Louisville firm of Pregliasco Straw-Boone, which specializes in family law.
UPDATE: We were late getting this digest posted. The Kentucky Supreme Court, however, denied discretionary review and ordered that the Court of Appeals decision not be published. Lane v. Caudill-Lane, 2007 WL 2459269
Dad appealed TC order awarding sole custody to Mom and requiring Dad’s visits to be supervised. Additionally, Dad appealed TC’s order awarding Mom attorney’s fees.
CA upheld the award of custody and attorney’s fees but overturned the supervised visitation.
CA opined, on the issue of custody, that there was sufficient evidence presented for the trial court to award sole custody. CA went on to state that an award of joint custody presumes that the parties can rise above their petty issues and do what is in the best interest of the child. A TC should not assume that because parties are antagonistic during a divorce that they will not be able to rise above it in the future. However, in the instant case, the CA reasoned that it did not appear from the record that the parties possessed the necessary emotional maturity to ensure joint custody would be in the child’s best interest.
Regarding the issue of visitation, CA held that there was not substantial evidence to warrant limiting Dad’s visitation and TC used the wrong standard in making its decision. The appropriate standard for restricting visitation is whether the visitation would “seriously endanger the child”. There was testimony presented that, among other things, Dad had called a phone sex line, that he had visited pornography websites, and that he had watched pornographic movies. However, none of this occurred in the presence of the child. There was no evidence presented that such activity would harm the child. CA stated that there may be situations in which this type of behavior would endanger a child but there was no evidence presented that Dad’s behavior would “seriously endanger the child”.
On the issue of attorney’s fees, CA held that the decision to award attorney’s fees is completely in the discretion of the TC. The only requirement is that the court consider the financial resources of the parties.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates
Adoptions Changes Sought, Panel Wants Safeguards For Removing Kids From Parents is the title of a Lexington Herald-Leader article by Valarie Honeycutt Spears. Some quotes:
A task force studying the improper removal of children from their parents in Kentucky is for the second time asking the General Assembly to pass a reform bill.
State Rep. Darryl Owens, D-Louisville, is introducing legislation designed to put more safeguards into the process of removals by state social workers, into cases involving the termination of parental rights and into state adoptions from foster care in Kentucky.
If enacted, the bill would further protect the due process rights of parents, slightly increase accountability for the Kentucky Cabinet for Health and Family Services staff and provide increases in the fee scale for court-appointed attorneys for children and their parents.
The Cabinet's Blue Ribbon Panel on Adoption presented similar, though weaker, legislation, during the 2007 General Assembly, but it failed to become law. The task force had been led by former Secretary Mark D. Birdwhistell.
The story continues,
In Kentucky, there was no definitive word yesterday on whether there will be additional legislation filed in the 2008 General Assembly to open child protection courts, an issue that was a main focus of the Blue Ribbon panel.
Cabinet Undersecretary Tom Emberton Jr. told members of the Interim Joint Committee on Health and Welfare yesterday that regional meetings were being held across the state at the direction of Chief Justice Joseph E. Lambert to determine whether a bill should be filed.
Last week, Lambert stopped short of saying that legislation would be filed in the upcoming legislative session. But he said, "I support the concept of allowing greater public access to juvenile court proceedings."
One new provision in the legislation presented yesterday gives Kentucky's chief justice the ability to establish rules to manage juvenile and child protection cases. The legislation also calls for parents -- and children if they are old enough -- to meet with their court-appointed attorney before they go to court for the first time. That does not happen now.
And the bill says that as of July 1, 2010, attorneys would have to prove that they had received specialized training before they could be placed on a new list that would allow them to be appointed by the court to represent children and parents.
Under the proposed legislation, fees for court-appointed attorneys would be increased from $500 to as much as $1,500, but they would have to justify those fees to the state.
Dad appealed an order recalculating and increasing his child support. On appeal, Dad argued that it was error for the TC to review child support because Mom did not show a 15% change in the amount of child support due. Also, Dad argued that the TC abused its discretion in raising his child support because mom didn’t show a 15% increase. CA held the TC erred in not making any findings of fact but Dad failed to request the court make such findings and therefore failed to preserve the error for appeal.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates
Family court judge held Meyers in contempt for not completing domestic violence counseling, which was ordered by the court. As punishment for this contempt the judge ordered Meyers to attend the same counseling. Meyers argued that because the DVO, under which the counseling had been ordered, had expired the family court lacked jurisdiction to require him to attend the counseling.
CA held that it was not an abuse of discretion for the family court to order Meyers to attend counseling after the DVO had expired. CA reasoned that the family court was not attempting to enforce the DVO after it expired but was exercising its contempt powers. CA opined that “courts of this Commonwealth have inherent powers to punish individuals for contempt.” CA acknowledged that it may be a little unorthodox to order some one to attend counseling as punishment for contempt. However, the court stated that when punishing a contemptuous individual the “punishment should be reasonably related to the nature and seriousness of the party’s contemptuous behavior.” Therefore, sentencing Meyers to attend counseling as punishment for his contempt was appropriate.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates
Last night the home of Tulsa attorney spouses Jim Lang and Sharon Corbitt caught fire. Jim is dead and Sharon is hospitalized in serious condition. As many of you may know, Sharon is a past chair of the ABA Family Law Section and an AAML Fellow.
Associated Press - December 19, 2007 2:25 PM ET
TULSA, Okla. (AP) - The death toll from the ice storm is up to 28 with the death of a Tulsa attorney who was critically injured in a house fire that already killed her husband. Friends of Sharon Corbitt say Corbitt has died of injuries suffered in the fire.
Corbitt's husband and fellow Tulsa attorney Jim Lang also died in the fire.
What a huge, sad loss for the family law bar.
Three years ago, Dutch national Hans's life was one of turmoil as he, his children and ex-wife living in Canada were entangled in a messy child custody wrangle.
Following a tough international legal battle, he had won custody over his children and brought them back to the Netherlands.
There he discovered they resented him for fighting their mother. Bringing them up alone was another factor he found himself unable to cope with.
Communication had all but broken down. But then he found a solution - mediation.
A conference of 50 professionals in Apeldoorn is now discussing this new approach - mediation instead of litigation - as a way of resolving serious cases like that faced by Hans.
"After beating my ex-wife in court in the 1980 Hague Convention procedures that helped me return the children to the Netherlands, I discovered I had won a legal battle but lost my family," Hans told Deutsche Presse-Agentur dpa.
"Communication with my ex-wife had reached an absolute low following the legal proceedings. The children resented me for taking them out of their environment just when they finally felt settled in Canada. They also had a difficult time living without their mother."
Their mother, working part-time, had always been the children's primary caregiver. Now, Hans had to replace her while working full-time. It proved impossible.
Mediation resolved the problem.
"We negotiated a new settlement for more than eight months and drafted a parenting plan for custody and visitation. The two youngest children returned to their mother in Canada. Our eldest son stayed with me," he said.
His story marks a change in the way professionals today deal with the 1980 Hague Convention on Child Abduction.
This agreement helps prevent abductions, but in the process throws parents into new legal proceedings. This does not contribute long- term parental cooperation.
"Particularly common law countries are known for creating maximum adversity between divorcing parents," says Denise Carter, director of Reunite.
Reunite is a British non-governmental organisation that helps parents who deal with international abduction, travel or relocation.
Reunite was also present at the Apeldoorn conference, organised by the independent non-governmental Centre for International Child Abduction (IKO).
Contrary to many countries nowadays, the Dutch do not automatically offer mediation in Hague Convention proceedings.
"This is surprising, considering the strong Dutch mediation tradition," says Eberhard Carl, a German liaison judge who deals with international legal proceedings and mediators.
"I always tell parents any mediated settlement will make them happier than a court ruling. With mediation people regain control over their lives," he added.
International mediation works with two mediators: one for each of the parent's gender and culture.
German attorney and mediator Christoph Paul says: "It is crucial that both parents feel recognised during mediation. And they need recognise their children's binational identity."
Judge Carl notes that in western Germany, "mothers looked after young children themselves. French mothers send their babies to daycare. So you often see a French father claiming his German wife "is isolating" their 2-year-old daughter by keeping her at home.
"Vice-versa, German mothers don't understand why a French father involves his parents so much in family issues," he added.
Paul notes the cultural aspects involved in such cases: "Family members play different roles in different cultures. That is why cross-cultural mediation requires mediators from both cultures."
Whether mediation will be integrated in all 1980 Hague Convention proceedings, remains uncertain.
"Mediation can only be successful if both parties have an open mind and are willing to consider different, original, solutions," Paul asserts.
"A pragmatic mind-set is key to conflict-resolution. It is however important to remember that pragmatism is primarily a feature of north-west European culture," he added.
Child resided primarily with Mom until she was removed in a dependency action. At the temporary removal hearing Dad agreed that it would be best that the child temporarily reside with a member of Mom’s family. Shortly thereafter Mom died. At what was supposed to be a pre-trial conference a social worker incorrectly informed the TC that Dad had agreed that permanent custody should be awarded to the temporary custodian (custodian). Dad was not represented by counsel, his custodial rights were not explained to him, and the TC did not question him about his wishes regarding custody. Approximately a year later dad filed a petition for custody. The TC held that the custodian was a de facto custodian, that she had equal standing with Dad, and that Dad had failed to meet the statutory requirements to modify custody. The trial court also held that because Dad did not object when the permanency order was entered he waived his custody.
CA held that while Dad was present when custody was awarded to the custodian it was likely he did not understand what was occurring. The CA opined that while a parent can waive his parental rights that waiver should not occur by accident because a party does not understand the proceedings. Dad’s silence at the pre-trial conference did not constitute a waiver of his parental rights. Additionally, the CA held that since no evidence was taken at the hearing on Dad’s petition for custody there could be no finding that the custodian was a de facto custodian. Regarding the permanency order, the CA held that a permanency order in a dependency action may qualify as a custody decree. However, to be considered a valid custody decree it must be based on the standards set forth in KRS 403.279(2). The TC took no evidence upon which it could have found that the custody placement was in the child’s best interest and therefore did not meet the elements of KRS 403.279(2). Because the order in the dependency action was not a custody decree, as envisioned by KRS Chapter 403, it was not necessary that the requirements of KRS 403.340(2) be met in order to modify custody.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates
We previously posted here about oral arguments and posted the briefs in Gripshover. Thanks to Kentucky Court Reports for posting the updated schedule for oral arguments, now set to be held December 14, 2007 at 10:00 a.m. Here's the link to check out the oral arguments online. From KCR:
GRIPSHOVER V. GRIPSHOVER (2005-SC-000729-DG)
AND (CROSS-MOTION) GRIPSHOVER V. GRIPSHOVER
"Domestic Relations. Dissolution of Marriage. Division of Real Property. Issues include the extent and divisibility of marital interest in real property that has been placed in an irrevocable trust and the application of Brandenburg v. Brandenburg, 617 S.W.2d 871 (Ky. App. 1981)."
Discretionary review granted 3/15/2006 and 6/7/2006
Boone Circuit Court, Judge Linda Bramlage
For Movant/Cross-Respondent: David A. Koenig
For Respondent/Cross-Movant: D. Anthony Brinker
(Note: Justice Schroder is recused)
(Rescheduled from August 15, 2007)
Kentucky Court Report has collated and posted the following which includes links to briefs in which oral arguments are set December 13, 2007 before the Kentucky Supreme Court in two relocation cases:
9:00 a.m. FRANCES V. FRANCES (2007-SC-76-DGE)
"Child Custody. Issues in this marriage dissolution proceeding relate to the trial court's award of primary physical custody of the child to the father, and the effect of the mother's relocation out-of-state on the determination of the child's best interest."
Discretionary review granted 3/14/2007
Trigg Circuit Court, Judge Bill Cunningham
For Movant: Julia T. Crenshaw
For Respondent: Sands Morris Chewning
(Note: Justice Cunningham is recused)
10:00 a.m. PENNINGTON V. MARCUM, F/K/A MILES (2006-SC-642-DG)
"Child Custody. Issues relate to the denial of a motion to modify a custody agreement based upon the residential custodian's relocation out of state with the child."
Discretionary review granted 1/18/2007
Boyd Circuit Court, Judge Marc I. Rosen
For Movant: Rhonda M. Copley
For Respondent: Martha A. Rosenberg
(Note: Justice Minton is recused)
A reader asked me to post an article I published in The Advocate. Here's the beginning and the entire article is on a .pdf at the end.
Published in The Advocate, The Kentucky Justice Association, November/December, 2007, Volume 35, Number 6
DOMESTIC LAW WATCH FOR ALL CIVIL LITIGATORS
The doctrine of constructive trust, transfers to family limited partnerships and estate planning trusts, and equitable estoppel are some of the themes running through the most interesting new and pending Kentucky domestic cases. Just as good family law practitioners stay current in other fields of law, divorce cases can be important to trial attorneys with no family law practice. The status of the law regarding relocation of children, which so far is unique to family law, will be addressed at the end of this article. Download domestic_law_watch.pdf
As an update, Hinshaw v. Hinshaw (digested here) was rendered after this article was written.
Thanks for this important link. I think that it is important for us all to rethink the way that custody evaluations are used. While the field of psychology may yield some information regarding a mental health diagnosis, and perhaps parenting ability, it is not a substitute for the Court's decision based on the legal standard of best interests. Additionally, the evaluators are not trained in the rules of evidence or civil procedure which provide necessary and important safeguards in the process.
The Louisville Bar Association Family Law Section will be featuring three local evaluators at a seminar December 11, 2007. Here is registration info for the presentation by Stephen Free, JD, PhD, Jennifer Cebe, PhD, and
Kathryn Berla', Ed.D.
No new published family law cases today from the Kentucky Court of Appeals. Last week there was one, London v. Collins, 2007 –CA-000529-ME, regarding application of KRS Chapter 403 in modification of custody established in a dependency case. Digest to follow soon.
Dad appealed Family Court’s order modifying joint custody of Daughter to sole custody with Mom, and restricting Dad’s visitation to weekly supervised visitation. Dad alleged that Circuit Court erred by treating the Exceptions he filed as a Motion to Alter, Amend or Vacate and by transferring the case to Family Court.
When Daughter was ten, Mom and Dad divorced and agreed upon joint custody with equal time sharing of Daughter. Two years later, Mom alleged that Dad had engage in inappropriate sexual relations with Daughter and moved for sole custody. The matter was heard by a Domestic Relations Commissioner (“DRC”), who recommended sole custody to Mom with weekly supervised visitation by Dad. Dad timely filed Exceptions to the DRC’s recommendations. Circuit Court entered an Order that it would treat the Exceptions as a Motion to Alter, Amend or Vacate pursuant to CR 59.05 DRC’s recommendation and transfer the case to Family Court. DRC had been elected as Family Court Judge, and in that capacity, he subsequently denied the Motion to Alter, Amend or Vacate. Dad appealed.
CA agreed with Dad. Regarding the Motion to Alter, Amend or Vacate, CA noted that a CR 59.05 motion may only be utilized to seek reconsideration of a “final judgment.” The recommended order of a DRC is not a final judgment, but, rather, a recommendation utilized by the circuit court in reaching a final decision, thus the Motion to Alter, Amend or Vacate was not available at that stage of the proceedings. Considering the procedural posture of this case, CA believed the circuit court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the child custody issue.
As to Dad’s contention that the case should not have been transferred to Family Court, CA noted that while the family court was vested with jurisdiction over domestic issues by Ky. Const., § 112(6) and KRS 23A.100, such jurisdiction was not intended to be exclusive. Rather, the circuit court may, in some circumstances, retain jurisdiction to rule on domestic issues already before it, such as child custody. CA found that this case presented a unique circumstance where the circuit court should have retained jurisdiction and not referred it to Family Court since DRC conducted the proceedings, including an evidentiary hearing pursuant to CR 53.
Mom argued that Dad did not preserve issues for appeal, but CA stated that the gravity of errors claimed was one of substantial proportions, and pursuant to CR 61.02 this error may be considered by CA and the appropriate relief may be granted upon a determination that manifest injustice resulted from the error. CA noted that such an injustice had occurred, because “in a child custody proceeding, there can be no greater injustice to a party than a court failing to comply with applicable statutes and civil rules.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates