Pickelsimer v. Mullins, a lesbian child custody case and Hoofring v. Fite, et al, regarding modification of child support order were designated by the Kentucky Court of Appeals March 28, 2008 to be published. Digests will follow soon.
THOMAS V. THOMAS
DELINQUENT ENTRY OF DECREE
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: NOBLE PRESIDING; ABRAMSON, CUNNINGHAM, SCHRODER AND SCOTT CONCUR; LAMBERT, C.J. CONCURS IN RESULT ONLY
Ex-Wife raised 2 claims of error to SC: (1) that CA erred in affirming TC’s decision not to grant a hearing on evidence arising subsequent to DRC’s oral ruling ; and (2) that CA improperly applied the facts and holdings of Dubick v. Dubick, 653 S.W.2d 652 (Ky.App. 1983) to the case.
DRC took the parties’ dissolution action under consideration for final hearing on April 27, 2000. At the hearing's close, DRC issued oral ruling from the bench and directed Ex-Wife's attorney to draft an Order. That Order was never drafted by Ex-Wife's attorney and neither party brought this fact to TC’s attention. No action was taken to finalize the divorce until, four years later, Ex-Wife’s new attorney entered an appearance and requested a new hearing due to the delay and the parties’ changed financial circumstances. DRC recommended that no further hearings be held, and TC affirmed this recommendation. After hearing Exceptions filed by Ex-Wife, TC rendered a decision stating that either party could have requested written findings at an earlier date, but failed to do so.
SC noted that KRS 454.350 mandates a specific duty that DRC shall submit findings and recommendations necessary for an order within 90 days of the hearing. Here, SC found that DRC delivered his ruling orally, but did not follow through to see that it was reduced to writing, the form in which it had to be in order to send it to TC for final adjudication. Ex-Wife argued that the mandatory language of the statute thus voided the oral ruling, and another hearing should have been held. Ex-Wife would then be able to introduce new equitable issues as to the circumstances of the parties, which could result in a different division of the marital property. However, in Dubick this SC stated that even if there is a violation of KRS 454.350, any resulting late judgment or report is not void because of tardiness. SC found that the main difference between this case and Dubick is the amount of time that lapsed between the decision and the entry of the order and that the four years that passed in this case is a substantially longer period of time. Nonetheless, SC held that if the KY legislature had intended the judgment to be void when rendered more than ninety days after the hearing of the cause, it would be contained in the statute. Ex-Wife suffered no actual damage as she will receive whatever assets under DRC's findings she would have received four years ago, and she knew what those assets and debts would be due to the oral findings given at the original hearing in 2000. SC noted that allowing a new hearing in this case could encourage parties to purposely delay submitting orders, hoping they could force another hearing (and possibly a better result) at a later time.
SC noted that an attorney who is instructed by TC to draft and submit an order, and who fails to do so, may be charged with violating SCR 3 .130-1.3, requiring the attorney’s due diligence. Finally, SC stated that Ex-Wife also had another remedy for the delay that she did not uses—seeking a mandate of TC or else ask that the order of reference be set aside. TC’s order affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
SKINNER V. SKINNER
CHILD CUSTODY JURISDICTION
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: STUMBO PRESIDING; ACREE, GRAVES CONCUR
Dad appealed from TC’s order sustaining Mom’s motion asking TC to take jurisdiction of child custody matters stemming from a prior dissolution of marriage proceeding in Tennessee. Dad maintained that TC improperly assumed jurisdiction, improperly based its findings on facts not in the record, and erred in failing to maintain a record of its communications with the Tennessee court.
Dad and Mom were divorced in 1998 by TC in the state of Tennessee (“TN TC”). Mom received custody of the parties’ minor child, with Dad being granted visitation. In 1999, Mom and Child moved to KY and established residency. In 2003, Dad filed a motion to for Mom to show cause why she should not be held in contempt for her failure to permit Dad to exercise visitation with Child. In 2004, on the same day that Dad’s TN attorney was granted leave to withdraw in TN case, Mom filed a petition in KY TC to alter visitation schedule. Dad moved to dismiss KY motion for lack of jurisdiction which was subsequently denied for Dad’s failure to prosecute, but TN TC issued order setting a trial date for all pending issues and the order was mailed to Mom’s last known address. DRC conferred with TN TC on the jurisdictional issue. TN TC opined to DRC that jurisdiction should remain with TN TC. KY DRC found that Mom’s KY action, having been filed the same day that Dad’s TN attorney was granted leave to withdraw, represented Mom’s attempt to change jurisdictions, and that as Dad initially sought to enforce the existing TN Order in 2003, Kentucky could not exercise jurisdiction as a TN action was pending. Mom filed exceptions to KY DRC order. KY TC’s order (rendered in 2004) acknowledged that TN retained jurisdiction over a related contempt proceeding, but held that KY had jurisdiction over Child because Child resided in KY since 1999. In 2006, Dad moved KY TC to decline jurisdiction over Child and give full faith and credit to TN TC’s orders. Mom then sought an emergency order from KY TC to suspend visitation based on Child’s allegation that Dad tried to touch her inappropriately. KY TC then rendered an order declining jurisdiction as to the modification of visitation and giving full faith and credit to TN child custody orders, which Mom moved to alter, amend or vacate. KY TC then ruled that the UCCJA and KRS Chapter 403 operated to vest KY with jurisdiction over child custody and visitation matters, finding that KY was Child’s home state and that it was in Child’s best interest for KY to exercise jurisdiction. KY TC also determined that Dad had sexually abused the child, stating that “[t]his court cannot in good conscience place a child in the custody of a person who has been abusive to the same child. Therefore without question this court should assume jurisdiction of the child under this section.”
Dad moved for KY TC to disclose its record of communications with TN TC. KY TC overruled Dad’s motion for disclosures due to the fact that no record of communication between KY TC and TN TC existed. Dad then filed this appeal.
Dad contended that KRS 403.420 (now supplanted by KRS 403.822) allows for jurisdiction to be determined based either upon whether KY is the child’s home state, or whether another state has continued to maintain jurisdiction in the matter, arguing that TN continued to maintain jurisdiction over the action, and that KY TC so acknowledged in 2006, when it stated that TN would have jurisdiction of modification and child custody orders in the case. Dad argued that by reversing this order with the entry of a new order, KY TC placed itself in the position of a review court by attempting to reassert jurisdiction over an issue which it had previously ruled that it did not maintain. CA found no error. Because Mom’s petition to alter visitation was filed before the enactment of KRS 403.822 and KRS 403.826, the law in effect at the time of filing, KRS 403.420 is controlling. KY had jurisdiction to adjudicate Mom’s petition since Child resided with Mom in KY for at least six months prior to the filing of the petition, which is one of the scenarios allowing KY to have jurisdiction per KRS 403.420.
Dad also argued that KY TC erred when it rendered 2006 order based on facts not found in the record, in which KY TC acknowledged relying upon written letters from counselors addressing the child abuse allegation, and that KY TC improperly failed to maintain a record of its communication with TN TC as required by statute, thus preventing him from defending, explaining or rebutting any information contained therein. CA agreed. Given the parties’ right to have the matter adjudicated from the evidence of record, as well as their statutory entitlement to examine a record of KY TC’s communication with TN TC, CA found that KY TC clearly erred by impairing or eliminating Dad’s ability to examine and rebut the evidence relied upon. CA affirmed KY TC’s order as to that portion reflecting KY TC assuming jurisdiction based on its finding that KY is Child’s home state, but reversed and remanded as to that portion of the Order addressing matters not contained in the circuit court record.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.
The parties were divorced in 1990 and the divorce decree contained a provision regarding the husband’s retirement benefits. In 2005, when the husband retired from the Louisville AFSS Department of Transportation FAA, he noticed that his ex-wife was receiving more than her intended share of the benefits. In order to correct the error, since the settlement agreement failed to adequately address the issue, he filed a motion with the TC to modify the decree. The TC denied the motion finding that it lacked appropriate jurisdiction and recommended that the husband seek relief in federal court. COA found that the TC does have proper jurisdiction under 5 CFR § 838.101 (a), which specifically states that state courts have the authority to resolve disagreements concerning validity or provisions of any court order. Reversed and remanded.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates
The Cabinet acquired custody of C.M. as a dependent minor. Upon reaching the age of majority, C.M. requested continued commitment to the Cabinet until age 21, for the purpose of facilitating her education at Northern Kentucky University. The Cabinet consented and the Court approved the extension. C.M. then dropped out of her classes and the Cabinet asked her to rescind her commitment. C.M., after speaking with her GAL, then changed her mind about dropping out of school and moved for reinstatement of her commitment. At a hearing on the motion, the TC found that the continued commitment was in C.M.’s best interests. COA held that the TC’s order of education controls until it is modified or vacated and recommended that the Cabinet file such motion if it desired to change the Court’s order. COA found no error in the TC reinstating C.M.’s commitment to the Cabinet, which was merely suspended, not vacated, by the Cabinet’s procedure of issuing a letter of intent to release C.M. from commitment. Affirmed.
Of the Court of Appeals decisions designated to be published today, one is a jurisdiciton dispute involving a child, Skinner v. Skinner. The link to Commonwealth v. C.M. is broken and the COA case info for 2007 CA 1468 shows nothing, either. Maybe it is sealed and it may not be a family law case. Digest(s) to follow.
UPDATE: The link to Commonwealth v. C.M., a child, et al is fixed. It concerns committment of an adult child to the Cabinet for educational purposes and will be digested soon.
Father appealed the TC’s denial of his motion for immediate reinstatement of visitation with his daughter, K.H.
During the parties’ divorce settlement negotiations in 1997, the mother alleged that the father sexually abused K.H. The record is silent as to the nature of the allegations and whether the allegations were substantiated. The separation agreement granted joint custody to the parties, with the mother being appointed primary residential custodian. The father then had visitation with K.H. every other weekend and two hours on every other Wednesday until 2004.
Without the father’s knowledge, the mother had K.H. see therapists, the Sensings, in 1998. The Sensings noted that K.H. may have been traumatized by a male. They did not observe any obvious signs of sexual abuse, but could not rule out the possibility. Their recommendation was for K.H. to continue visitation with her father, but suggested that a female relative be present and that the visits increase as K.H. grew more comfortable with her father.
In 2003 the mother alleged that K.H. became anxious before visits with her father. Her pediatrician found no physical explanation for the anxiety. In 2004, Sally Sensing met with K.H. again. K.H., eight years old at this time, told the therapist that her father made her uncomfortable and she became physically ill before each visit. K.H. also alleged that her father embarrassed her, slept in bed with her, and took pictures of her naked in the shower (court noted that child was standing in the shower behind the curtain, modeling a shower cap, with a wide smile on her face), washed her inappropriately during baths, would drink and drive with her in the car, and left her in the car alone for 25 minutes while he shopped for a television. Sensing recommended that the visitation continue, but with professional supervision until the causes of K.H.’s anxiety could be fully assessed. Sensing did not report any abuse to authorities.
That same month, the mother motioned for the court to suspend or alter the father’s visitation. The father objected, and the mother stopped the visitation on her own. As a result, the father asked that the mother he held in contempt of court.
The DRC held a hearing in February 2004. After hearing testimony from the Sensings, Dr. Fane, a clinical psychologist who evaluated the father, both parties, maternal and paternal grandmothers, K.H.’s teacher, and the father’s ex-wife, the DRC recommended that visitation be suspended until the mother, father, and K.H. could be evaluated by one professional.
The evaluation by Feinberg & Associates revealed assets and deficits in the parenting of both parties. No allegations of sexual abuse were revealed, and Feinberg recommended that the visitation resume. As a result the TC ordered both parents and K.H. to begin counseling with Ruth Sutton, another therapist. When K.H. learned that she was to see Sutton to facilitate visitation with her father she became upset and claimed that her father had sexually abused her. Sutton reported the allegations of abuse to authorities.
K.H. told the CPS worker, Guffy, of the incidents of sexual abuse. The mother confirmed to Guffy that K.H. had told her of the incidents. The maternal grandparents also confirmed that K.H. had told them of incidents of abuse by her father. Since the father was living in Tennessee and that is where the abuse allegedly took place, Guffy filed a report with the police in TN.
In December of 2004, K.H. underwent a medical exam, however during the exam neither K.H. or her mother alleged that any inappropriate physical contact had occurred. The results of the exam revealed no abnormalities, but could not rule out the possibility of abuse.
Sutton continued to see K.H. until January 2006. The father had not heard from Sutton by December 2004, so he moved the court to reinstate visitation. The court set a hearing for January 2005, and planned on interviewing the child. In January 2005, the TN authorities wrote the TC a letter informing the judge of their open investigation and stated that if the father was granted access to the child, the authorities would take the child into state custody. The TC cancelled the interview of the child as to not become a witness in the TN criminal investigation. The record is silent as to whether criminal charges were ever filed or pursued against the father in KY or TN.
In December 2006, a hearing was held at which the father testified and denied the abuse allegations. Sutton also testified. She stated that she believed K.H. and adamantly opposed any contact between K.H. and her father. The TC concluded that it was not in K.H.’s best interests to see her father, since it would endanger her physical, mental, and emotional health.
COA affirmed. TC’s findings were supported by substantial evidence and did not abuse its discretion. However, COA noted that six mental health professionals reviewed the case, and only one of them, Sutton, testified at the hearing. Sutton, who stumbled on cross-examination regarding her own qualifications, was the only one of the six that thought visitation should be stopped. COA also noted that its opinion does not prohibit the father from pursuing future visitation with his daughter.
By Sarah Jost Nielsen, published in The Advocate, The Kentucky Justice Association, March/April 2008, Volume 36, Number 2.
The constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution is typically associated with parties in a criminal action. However, the privilege may also be asserted by a party in a civil action, such as a divorce. For example, the issue may arise if a spouse faces a criminal investigation by the Internal Revenue Service and asserts the privilege in response to questions regarding tax returns or other financial information. When a spouse asserts the privilege against self-incrimination in a divorce proceeding and blocks the other party's access to relevant, and often critical, information, the court must balance the rights of both parties to ensure that the case proceeds equitably and does not stagnate.
Kentucky is among those states that have yet to address the issue of a party asserting the Fifth Amendment privilege against self-incrimination within the context of a divorce proceeding. Although the issue seldom arises, an ample body of case law exists among the other states that can act as a guide when it does. Courts have a variety of remedies available to ensure the equitable and expeditious adjudication of both parties' rights and claims. Just as important as one party's right to claim the privilege against self-incrimination, is the other party's right to discover evidence relevant to the fair resolution of his or her claims and defenses without undue delay.
Among the states that have addressed the issue, there are two widely accepted remedies. One allows the fact finder to draw an adverse inference against the party invoking the Fifth Amendment privilege against self-incrimination. This remedy follows the established rule recognized by the United States Supreme Court in Baxter v. Palmigiano that the Fifth Amendment does not forbid adverse inferences against parties to civil actions. The other common remedy allows the court to deny the spouse who invokes the privilege affirmative relief if he or she refuses to answer questions relevant to the issues.
For instance, in Griffith v. Griffith, a divorce proceeding, the wife sought the affirmative relief of permanent alimony. Since adultery was a criminal offense in South Carolina, the parties stipulated that they had been granted immunity from prosecution for adultery. Nevertheless, the wife still invoked the privilege against self-incrimination and refused to answer questions regarding adultery, since proof of adulterous conduct under some circumstances acted as a bar to alimony. In affirming the trial court's decision that the immunized wife could not assert the privilege and seek the affirmative relief of alimony, the appellate court noted that almost all of the states that have confronted the issue of whether a spouse may continue to request the affirmative relief of alimony while denying the opposing party the opportunity to cross-examine on the subject of the alleged adultery have held that the spouse must choose between invoking the privilege and seeking affirmative relief. The denial of the right to seek affirmative relief under such circumstances does not violate any right guaranteed by the Fifth Amendment. The court reasoned that [i]f any prejudice is to come from such a situation, it must, as a matter of basic fairness . . . be to the party asserting the claim [of privilege] and not to the one who has been subjected to its assertion. It is the former who has made the election to create an imbalance in the pans of the scales. In addition to denying the wife affirmative relief, the court also held that the trial court erred in not drawing an adverse inference from the wife's refusal to answer questions regarding her alleged adultery. In so doing, the court again noted that the majority of jurisdictions confronted with the issue have followed the rule articulated in Baxter, supra, and held the same.
Likewise, the Supreme Court of Rhode Island in Pulawski v. Pulawski held that the trial court erred in a divorce action by granting affirmative relief to the wife and in failing to draw any negative inference against the wife even though she invoked the privilege against self-incrimination. The Court found that the imposition of sanctions upon a party who seeks affirmative relief and the drawing of adverse inferences against such a party when he refuses to answer relevant questions on self-incrimination grounds are widely accepted in both state and federal courts.
In Kentucky, practitioners can ask the court to deny relief to a spouse who invokes the privilege and to draw adverse inferences against him or her using the same legal principles. For instance, if a spouse invokes the privilege as to financial information and also asserts a claim for maintenance, then the practitioner should ask the court to deny that spouse's claim for said relief. While the case law cited herein refers to affirmative relief, logic and equity dictate that this remedy also be available when any spouse requests relief and then invokes the privilege regarding the discovery of relevant information for the fair adjudication of that relief. The practitioner can also ask the court to draw adverse inferences against that same party in relation to other issues that factor in the spouse's financial circumstances, such as child support or property division.
In addition to the use of the two remedies discussed above, courts have fashioned other solutions. For instance, some courts have required the dismissal of the divorce petition when the plaintiff spouse refuses to waive his or her privilege against self-incrimination. In so holding, those courts reason that in cases with private litigants, one party's right to claim the privilege against self-incrimination must be balanced against the other party's right to due process and a fair trial. If a plaintiff is allowed to present sufficient facts to state a cause of action in order to seek affirmative judicial relief, the defendant cannot be denied the right to discover all relevant facts and evidence in his or her attempt to avoid liability. As one court succinctly stated, one seeking equity must do equity. A party should not be allowed to use the privilege against self-incrimination as both a shield and a sword.
Courts have also utilized the remedy of striking a party's pleadings. In Franklin v. Franklin, the wife refused to answer interrogatories and testify regarding the status of her prior marriage, invoking the privilege against self-incrimination. At the same time, the wife, plaintiff in the divorce action, sought temporary alimony. By invoking the privilege, she refused to reveal facts that were critical to an accurate and fair adjudication of her right to divorce and to temporary support. The Supreme Court of Missouri, applying principles of equity, found that if a party refuses to answer oral or written interrogatories which request relevant and material facts that are solely within the knowledge of the party, the court may strike that party's pleadings.
Lastly, courts have denied a party the right to rely on evidence about which they refuse to testify. In In re the Marriage of Hassiepen, the husband invoked the privilege against self-incrimination during cross examination when asked questions regarding why he had filed multiple tax returns late and why he had yet to file one year of returns. However, the husband wanted the trial court to consider those same returns as evidence of his income in determining the amount of his child support obligation. The appellate court held that if the husband wanted the trial court to consider the tax returns as evidence, then he must testify regarding any relevant questions about them, reasoning that the cross examination of the husband goes to his credibility and the legitimacy of the tax returns. Therefore the court held that the trial court erred in considering the tax returns. The husband needed to choose either to assert the privilege against self-incrimination and not rely upon the tax returns as evidence of his income, or to submit the tax returns as evidence and not assert the privilege during cross-examination. It is important to note that the court's limitation on the husband's use of the tax returns did not extend to the wife. The wife was free to use the returns in any legitimate way that she desired.
This review of case law reveals that the remedies available to a Kentucky court span a wide range of extremes and potential efficacy. On the one extreme, courts may dismiss the divorce petition altogether if the plaintiff spouse invokes the privilege. However, this solution not only penalizes the plaintiff spouse, but also unfairly penalizes the defendant spouse if he or she wants a divorce. Instead of balancing the parties' rights, this remedy voids everyone's rights. Of course, the defendant spouse may then file his or her own petition, but not without the likelihood of incurring additional court costs and attorney fees. On the other hand, the least extreme remedy, drawing adverse inferences against the party that invokes the privilege, is inadequate. While this remedy may be helpful to parties not claiming the privilege, it does not necessarily get them where they need to go. In many instances, when the court draws all adverse inferences, the resulting conclusion will still fail to provide an accurate picture of the parties' finances. Thus, the non-invoking spouse may still receive significantly less in a division of property or determination of maintenance or child support than he or she is due. Those remedies that fall somewhere in between the two extremes seem to offer the most effective and equitable solution to the court's need to balance the rights of both parties. Denying affirmative relief, striking a pleading, and/or denying the right to rely on certain evidence, all seem to strike the right balance, maintaining a spouse's right to invoke the privilege as well as the other spouse's right to a fair adjudication of his or her rights and claims without unwarranted delay. As such, Kentucky practitioners should carefully examine the facts and circumstances of their case to determine which remedy would best benefit their client.
1. 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).
Affirmative relief is defined as the ârelief sought by a defendant by raising a counterclaim or cross-claim that could have been maintained independently of the plaintiffâs action.â Blackâs Law Dictionary (8th ed. 2004), relief.
2. 506 S.E.2d 526 (S.C. App. 1998).
3. Id. at 529-530.
4. Id. at 530. (citations omitted).
5. Id. at 531-532.
6. 463 A.2d 151 (R.I. 1983).
7. Id. at 156. (citations omitted).
8. See Christenson v. Christenson, 162 N.W.2d 194 (Minn. 1968), Stockham v. Stockham, 168 So.2d 320 (Fla. 1964), and Minor v. Minor, 232 So.2d 746 (Fla. App. 1970), affirmed by Minor v. Minor, 240 So.2d 301 (Fla. 1970).
9. Christenson v. Christenson, 162 N.W.2d 194, 202-203 (Minn. 1968)
10. Minor v. Minor, 232 So.2d 746, 747 (Fla. App. 1970) affirmed by Minor v. Minor, 240 So.2d 301 (Fla. 1970).
11, 283 S.W.2d 483 (Mo. 1955).
12. 646 N.E.2d 1348 (Ill. App. 4 Dist. 1995).
Your client asks you, “What does it mean to be a primary residential custodian? What effect does it have? After our divorce is final, can my spouse move and take my children away?”
Good questions. Unfortunately, the family law attorney has been unable, in recent years, to give a satisfactory answer, as the law on parental relocation in Kentucky seems to be forever in a state of flux. However, the odds of having concrete answers to those questions by the end of the year have improved on both the legislative and judiciary front, for legislation has been introduced to Kentucky’s House of Representatives that would provide family courts with much-needed guidance to resolve parental relocation disputes; and the Kentucky Supreme Court recently accepted discretionary review of three parental relocation cases: Pennington v. Marcum, 2006 WL 2194903 (Ky. App. 2006); Frances v. Frances, 2006 WL 3759659 (Ky. App. 2006); and Rankin v. Coffman, 2007 WL 1229022 (Ky. App. 2007).
Within four years of separation and divorce, about one fourth of mothers with custody move to a new location. Whether caused by a high divorce rate, remarriages, shifting job market, an increase of joint custody arrangements or simply the mobility of our society, more and more cases are presented to courts regarding relocation of children. It is probable that the number of cases litigated on this issue would decrease if there was clear statutory or case law on the subject, so that the family law attorney can properly advise her client. Relocation disputes pose great dilemmas for family courts. In a case where both parties are acting in good faith, the court must balance the relocating parent’s understandable desire of seeking a better life by moving away with her child against the non-relocating parent’s understandable desire to maintain frequent and continuing contact with his minor child.
Most state legislatures have addressed the issue, but ours has not. In the absence of legislation requiring notice and determining the factors to be considered when a parent desires to relocate a child, courts are struggling. In 2006, in Robinson v. Robinson, the Kentucky Court of Appeals noted that the arrival of the 21st century brought “an accelerated evolution” in child custody relocation litigation. The court then went on to lament the absence of legislation addressing the issue: “Unfortunately, despite Kentucky’s recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce… [U]ntil our legislature aligns with the majority of states [with relocation statutes], we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.”
In 1998, in recognition of the issue and dilemmas faced by the courts, the General Assembly passed a bill establishing a task force to study custody and visitation in Kentucky and to submit findings to the Legislative Research Commission. That report was submitted January 6, 2000 and included recommendations regarding the relocation of children as well as a bill draft. Sadly, no legislation regarding child relocation was passed.
In 2008, the relocation issue may finally be addressed by our statutes. House Bill 383 has been introduced this session in the Kentucky Legislature and was referred to the House Judiciary Committee. House Bill 383 would add a new section to KRS Chapter 403 that would provide a framework to family courts for proper adjudication of parental relocation disputes. A parent who provides the principal residence for a child will be required to provide notice of his or her proposed relocation and a proposed revised parenting time schedule to any other person with custody or visitation rights. Furthermore, if the parent who does not provide the child’s principal residence intends to move, he or she will also be required to notify the parent who provides the child’s principal residence of his or her intent to relocate as well as a proposed revised parenting time schedule. In both instances, notice must be provided no less than sixty days prior to the planned relocation, unless the parent does not become aware of the need for the move during that time frame, in which case he or she will have ten days from the date the information was received. The non-relocating parent will have thirty days after receiving the notice to object to the move, or the move will be permitted. Failure to provide notice can be considered by the court in its determinations regarding relocation or change of custody or visitation, as well as a basis for ordering the return of the child, an award of attorney’s fees to the non-relocating parent, or a finding of contempt against the relocating parent. The court may grant temporary orders allowing or disallowing the relocation. The court is to determine whether the relocation of the child should take place in accordance with the best interests of the child. The court would be prohibited from considering the relocating parent’s intention that he or she will not relocate if the relocation is denied. Lastly, the relocating parent will have the burden of proof that the proposed relocation is made in good faith and in the best interests of the child. The court may sanction either party if it finds that the party’s proposal or objection was made to harass the other party or delay the proceedings or was unsupported by the law or the evidence.
Should this legislation not pass, though that would truly be to the detriment of the courts, there is still hope for clarification of relocation law in the guise of the above-mentioned Kentucky Supreme Court cases. Our last Kentucky Supreme Court case on the issue, Fenwick v. Fenwick, left many Kentucky family law attorneys shaking their heads, as the Court declared that “a custodial parent’s decision to relocate with the children is presumptively permissible, and a custodial parent may relocate with the children without prior approval or modification of the joint custody award.” The Court further declared that “a non-primary residential custodian parent who objects to the relocation can only prevent the relocation by being named the sole or primary residential custodian, and to accomplish this designation would require a modification of the prior custody award.” At the time, this meant that he or she must show that “the child’s present environment seriously endangers his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages.” The custodial modification statutes have since been amended, but the Court of Appeals stated in Robinson that “The Supreme Court’s holding in Fenwick remains sound law under KRS 403.340(2) where the modification is sought within two (2) years of the original award of permanent custody.”
In Fenwick, the Court provided that it was following the trend of allowing the residential parent to move away with the child, if the move is made in good faith and a satisfactory revised parenting schedule can be achieved, based on “a prioritizing of the ‘new family unit’ constituted by the post-divorce relationship between the primary care-taker parent and the child.” Since that time, new evidence has been obtained to suggest that this is not the right approach. A new study suggests that, as compared with divorced families in which neither parent moved, students from families in which one parent moved had weaker relationships with their parents, as a whole, and fared worse overall as adults than their counterparts. While this should not suggest that relocation is not in a child’s best interests in every case, it will hopefully influence the Kentucky Supreme Court’s upcoming relocation decisions so that there is no longer a preference for the primary residential parent to be able to move with the child.
1. Sanford L. Braver et al., Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations, 17 J. Family Psychology 206, 206 (2003).
2. 211 S.W.3d 63, 67-68 (Ky. App. 2006).
3. 114 S.W.3d 767, 785 (Ky. 2003).
4. Id. at 786.
6. Robinson, 211 S.W.3d at 71.
7. Fenwick, 114 S.W.3d at 789.
8. Braver, supra at 214.
It is with surprise and pleasure as I reflect on the 17th anniversary of the Domestic Relations Update that it remains a vibrant, successful and integral CLE to Jefferson County family law practitioners.
When Alan T. Slyn and Retired Judge Richard A. Revell first presented this seminar in 1991 few attorneys limited their practices to divorce law. The Jefferson Family Court Pilot Project was just beginning, with Judge Revell sworn in as its first Chief Judge. Continuing legal education had just been mandated. The Annual Domestic Relations Update seemed to fit a great niche of bringing general practitioners up-to-date on Kentucky divorce law once a year and providing the venue for discussion among this nascent family law community.
Today we have a large family court bar and dedicated family courts. Presumably the many lawyers limiting practices to divorce and family law stay up-to-date. All new decisions are available on the internet as they are published. Three years ago when Alan Slyn asked me to present in his place, I feared this seminar may have become a dinosaur. It was my happy discovery in accepting the invitation to participate that this seminar remains a fabulous opportunity for the family court bench and bar to brainstorm cases and to debate the nuances of the law. Presenting is as exhilarating as Supreme Court oral arguments, for the questions are consistently insightful and provocative.
I invite you to join Judge Revell and me on March 14, 2008 from 11:00 a.m. to 1:00 p.m. for the 17th Annual Domestic Relations Update at the Louisville Bar Association. Sadly, Alan’s health will not permit him to attend even though he has requested the material and no doubt read every word of every case backward, forward, and upside down. I wish he would let us beam him in by hologram, but I guess carrying on the tradition will have to suffice.
Published in Louisville Bar Briefs, March 2008, Volume 08, No. 3
Diana L. Skaggs is President of the Kentucky Chapter of the American Academy of Matrimonial Lawyers. Her firm, Diana L. Skaggs + Associates limits its practice to divorce and family law.
ALLISON V. ALLISON
DIVORCE: MARITAL/NONMARITAL CHARACTERIZATION OF PROPERTY AND DEBTS; ATTORNEY FEES
PUBLISHED: AFFIRMING IN PART AND VACATING IN PART AND REMANDING
PANEL: BUCKINGHAM, PRESIDING; THOMPSON AND HENRY CONCUR
DATE RENDERED: 02/15/2008
Ex-Husband appealed from TC’s orders relating to marital/nonmarital nature of his family's business, the marital/nonmarital nature of a $66,714 debt allegedly owed by Ex-Wife to her mother, and the award of attorney and expert witness fees.
Ex-Husband and Ex-Wife were married on September 5, 1986. In the early 1970's, Ex-Husband's mother and father acquired all stock in an office-supply business. Ex-Husband owned all shares of stock in the business at the time of trial, which he claimed to be his nonmarital property. He claimed that prior to the marriage he entered into an agreement that gave him an 8% interest in the business in exchange for a promissory note from him for $32,000. Ex-Husband never paid the note, and TC found that his father had forgiven the debt. Ex-Husband contended that he owned this portion of the outstanding business shares as his nonmarital property because the forgiveness of the debt constituted a gift to him. Alternatively, he contended that this ownership interest is his nonmarital property because he acquired it before marriage.
As to the remaining shares of corporate stock, during the marriage, there was a stock redemption agreement between Ex-Husband's parents and the corporation whereby the parents sold their 84,800 shares of stock to the corporation for a sum that was paid to them over a ten-year period by corporate earnings. Ex-Husband claimed that these shares were also his parents' gift to him and that he never paid any money, from marital funds or otherwise, for the stock.
Ex-Husband ultimately argued to CA that he had at least an 8% nonmarital interest in the business due to the forgiveness of the payment for the stock by his father, citing KRS 403.190(2)(a) which expressly excludes property acquired by gift from the definition of “marital property” unless “there are significant activities of either spouse which contributed to the increase in value of said property and the income earned therefrom.” Alternatively, Ex-Husband stated that the 8% interest is nonmarital because it was acquired before marriage.
CA provided that if Ex-Husband acquired his ownership interest in exchange for the note, and that indebtedness was later forgiven, then the forgiveness of the indebtedness would be a gift to Ex-Husband and would constitute a nonmarital interest in the corporation. CA thus vacated TC’s determination that Ex-Husband did not have a nonmarital interest in the corporation and remanded the matter for TC to determine the extent of Ex-Husband's interest prior to the redemption agreement and whether such interest was marital or was proven by Ex-Husband to be nonmarital as a result of a gift or nonmarital as having been acquired before marriage.
CA further noted that if, on remand, TC determined that Ex-Husband's interest prior to the redemption was marital, then any increase in ownership interest because of the redemption agreement was also necessarily marital. If TC determined that Ex-Husband's interest prior to the redemption was nonmarital, then it must determine whether any increase in value was marital or nonmarital. CA noted that, in this regard, the case was one of first impression in Kentucky.
CA recognized that under the “source of funds” rule used by Kentucky courts to determine whether property is marital or nonmarital, property is considered to be acquired as it is paid for; thus, the shares of stock sold to the corporation in the stock redemption agreement were not “acquired”, within the meaning of KRS 403.190 and the determination of marital/nonmarital interest, until they were paid for. CA found that these shares were paid for during the marriage over a period of years by corporate earnings and therefore were “acquired” during the marriage and are presumed to be marital property. Ex-Husband attempted to avoid the presumption by arguing that he exchanged his 8% interest for a 100% interest when the stock redemption occurred. CA agreed with Ex-Husband that the value of his ownership interest did not increase at the time of the stock redemption because while the percentage of ownership interest increased, the value of the corporation decreased because of the debt liability created to pay Ex-Husband's parents for their shares. However, although Ex-Husband's ownership interest at the time of the redemption of his parents' shares increased, the value of Ex-Husband's shares did not. Rather, the value of Ex-Husband's shares increased during the marriage as the corporation gradually paid the debt to Ex-Husband's parents. CA provided that if Ex-Husband had a nonmarital interest in the corporation at the time of marriage, the value of that interest likely increased in time as the years passed and the corporation paid off the debt owed to Ex-Husband's parents. CA held that to the extent the increase was due to Ex-Husband's efforts as the primary operator of the business and Ex-Wife's efforts as homemaker, it was marital property. However, to the extent the increase in value was due to general economic conditions, the increase was not marital property.
Ex-Husband's second argument was that TC erred in finding that checks from Ex-Wife's mother written to Ex-Wife after she and Ex-Husband separated constituted a marital debt. After the parties separated, Ex-Wife was awarded $2,000 per month for temporary maintenance and $1,000 for child support. Thereafter, as power of attorney for her mother, Ex-Wife wrote checks totaling $66,714 on her mother's checking account. Some of the checks were written before the maintenance and child support awards to Ex-Wife, and some were written after the awards. Of this amount, $27,300 in checks apparently were written to Ex-Wife herself for cash. Ex-Wife claimed that all the checks were loans from her mother that were needed because she could not meet her living expenses despite her maintenance award of $3,000 per month. She claimed that much of the money went for home maintenance and repair and that the remainder went for living expenses for her and her daughter. Ex-Husband was not aware of the alleged loans, and he argued that the checks were likely to be gifts from Ex-Wife's mother and that Ex-Wife's testimony that the checks were loans and the notations of “loan” on some of the checks were insufficient to prove the existence of a loan. Ex-Wife testified as to the nature of the debts and had documentation in the form of checks from her mother that supported her testimony that there was actually a loan. TC accepted Ex-Wife's claim of indebtedness to her mother based on her testimony and copies of the checks and CA concluded that the evidence was sufficient to support the determination that the checks represented loans, not gifts. However, CA held that to the extent that Ex-Wife may have used loan proceeds for her personal expenses and expenses for her child after being awarded temporary maintenance and child support, those debts should be held to be Ex-Wife's personal debts. To do otherwise would be to increase Ex-Husband's temporary maintenance and child support obligations during that period of time.
Ex-Husband's third and final argument was that TC erred in ordering him to pay 25% of Ex-Wife's attorney fees and expert witness fees because there was not an imbalance in the financial resources of the parties. Ex-husband stated that the marital property was equalized but that the majority of his assigned marital property ($1.2 million) was the family business. Ex-Wife asserted that while Ex-Husband had a salary of over $100,000 per year, as well as potentially more due to retained corporate earnings not paid by the corporation, she was 55 years old at the time, had been out of the work force for 10 years, and had only a high school education, so although the marital property was divided equally, the financial resources of the parties were not balanced due to these additional facts. Ex-Husband also correctly stated that TC made no specific finding that there was an imbalance in the financial resources of the party, but that it appeared to base its award on Ex-Husband's obstructive tactics in failing to comply with discovery requests and orders of the court. Also, Ex-Husband argued that attorney fees may be awarded pursuant to KRS 403.220 only when there is an imbalance in the parties’ financial resources, even though attorney fees may be warranted otherwise under CR 37.01 due to obstruction tactics. CA found that it was not entirely clear whether TC based its award of attorney fees under KRS 403.220 on the financial resources of the parties as well as Ex-Husband's obstructive tactics. CA found that while TC did not specifically address the parties' financial resources prior to making the award, it did cite the statute, which requires the court to consider such resources. CA held that, in light of Ex-Husband's failure to seek a more specific finding from the court, and in light of the fact that a finding of disparity in the parties' financial resources due to the parties' respective incomes was supported by the evidence, TC did not abuse its discretion in awarding Ex-Wife 25% of her attorney fees and expert witness fees.
As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
BAKER V. COMBS
CUSTODY: DE FACTO CUSTODIAN
PUBLISHED: VACATING AND REMANDING
PANEL: KELLER, PRESIDING; THOMPSON AND WINE CONCUR
DATE RENDERED: 02/29/2008
Mother appealed from TC’s order denying her motion for custody of her natural child and awarding continued permanent custody to Paternal Grandmother and Step-Grandfather (“Paternal Grandparents”). Mother and Father were never married, and Father never participated in the action or otherwise sought custody of Child. Mother is now married and has another child.
Child was first removed from Mother and placed in the temporary custody of CFC in January 2004 by Whitley District Court (“Whitley DC”) on the basis of Mother’s drug use and the fact that she left Child with Paternal Grandparents for the preceding two months; CFC placed Child with Paternal Grandparents. After adjudication hearing but before disposition hearing, Whitley DC transferred the case to the Laurel District Court (“Laurel DC”). Laurel DC, after permanency hearing, subsequently ordered that the permanency plan was placement with a permanent custodian pursuant to CFC’s recommendation and named Paternal Grandparents as the permanent custodians. Laurel DC entered a permanent custody order the same day, presumably naming Paternal Grandparents as Child’s permanent custodians, although the order portion of the preprinted AOC-DNA-9 form was not completed.
In the Findings of Fact portion of the form, Laurel DC indicated that it considered factors relating to a prior independent finding that a de facto custodian existed. However, CA found that the record did not contain any document reflecting a prior independent finding that a de facto custodian situation existed in this case.
Eight months later, Maternal Grandparents and Mother filed a Verified Petition for Custody in the Knox Family Court (“Knox FC”), as this was the home county of Paternal Grandparents and Child, requesting custody to Maternal Grandparents or to Mother. Knox FC permitted Mother supervised visitation with Child and ordered that she submit to random drug tests, each of which revealed a negative result. A year and a half later, Mother moved Knox FC for custody of Child, stating that she had complied with the court’s order that she rehabilitate herself, that she was married, and that she was leading a stable life. After hearing in which Mother’s witnesses testified that she had overcome her past problems with drug abuse, that she was currently a different person, and that she was capable of raising Child, and testimony regarding Mother’s past drug use and her past actions in leaving Child with Paternal Grandparents for extended periods of time, Knox FC denied Mother’s motion on the record, noting that Child had been in Paternal Grandparents’ home for more than 3 years and that the benefits of changing custody would not outweigh the harm in doing so. Knox FC entered an order to this effect, finding that it would not be in Child’s best interest to remove him from the Paternal Grandparents’ home and awarding Mother standard, unsupervised visitation.
Mother argued to CA that Knox FC erred in awarding custody to Paternal Grandparents, because they were not de facto custodians and she was not unfit. Paternal Grandparents asserted that Laurel DC decided the issue of de facto custodians, so that any further adjudication on this issue would be barred by res judicata, and that they are de facto custodians.
CA noted that a de facto custodian is defined in KRS 403.270(1)(a) as: :[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.” CA stated that once it determines that such a person is a de facto custodian, TC shall give the person the same standing in custody matters that is given to each parent under this section, and determine custody in accordance with the best interests of the child.
CA found that there was no prior finding that Paternal Grandparents were de facto custodians, nor were there any findings that Paternal Grandparents were the primary caregivers and financial supporters of Child for the required statutory period, despite the fact that the form AOC-DNA-9 had some boxes checked in this regard. Therefore, before Knox FC may determine custody as between Mother and Paternal Grandparents using a best interests standard, CA held it must first independently decide that Paternal Grandparents are de facto custodians. As such a finding had never been made, CA vacated Knox FC’s order and remanded for a determination of whether Paternal Grandparents meet the requirements to be de facto custodians.
Husband and his brother owned a farming operation, realty totaling over 600 acres, and a promissory note for more than a million dollars. They formed two limited partnerships: 1) a real estate partnership with their wives that would hold and manage the realty, and 2) a partnership to manage the farming operation. The brothers also assigned their partnership interests to two trusts. The wife signed documents allowing said transfers. The Supreme Court granted discretionary review to consider the validity of the partnership and trust into which the parties transferred a large portion of their estate less than a year prior to the filing of the petition for divorce, as well as to review the child support and maintenance awards.
Real estate partnership and trust: There was no evidence that either party was contemplating divorce at the time the estate plan was executed or that the husband’s intent was to impair the wife’s marital rights. Therefore, the wife had not been defrauded, as she knowingly and voluntarily consented to the estate plan. The COA erred in holding that the wife retained an interest in the realty and that it was subject to division as marital property. The wife’s argument that the estate plan should be set aside due to the husband retaining control over the realty and not truly giving it to the trust is without merit. SC noted that the wife did not join the necessary parties to challenge the validity of the partnership and trust. Moreover, SC held there was nothing wrong with the brothers retaining control of the realty for the purpose of use in the farming operation. The realty was not transferred to the trust, but instead the partner’s interest in the partnership. Thus, the realty was validly removed from the marital estate and was not subject to division.
Husband’s nonmarital interest in the promissory note: Wife argues that husband’s entire half of the note is marital, since the other siblings quit-claimed their interests to the three remaining siblings (one being the husband) in 1987 (parties married in 1988) for no consideration. Wife argued that because the siblings gave up their interests for no consideration, the property should be regarded as having no equity at that point, and that all equity in the property was acquired after the marriage. The court rejected this argument, especially since in 1989 a small portion of the land was sold for more than the outstanding indebtedness which adequately established that the property increased in value as a result of economic factors alone.
Child support and maintenance: The parties’ incomes were wrongly determined. TC erred in allowing the husband to calculate his income for child support purposes using 26 U.S.C. sec. 179 expense deductions. Section 179 provides an alternative to standard, straight line depreciation, which KRS 403.212(2)(c) mandates as the only allowable method. TC also erred in imputing the wife with $360 per week of income, a level of income well above what she achieved when she was younger and in much better health. TC did not adequately consider all of the statutory factors in KRS 403.212(2)(d). Therefore, SC held that both child support and maintenance must be reconsidered.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates