The Kentucky Supreme Court released its opinion yesterday in Horvath v. Horvath, online here, regarding claimed satisfaction of a temporary maintenance obligation from marital property. A digest will follow.
JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.
The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.
Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.
Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the “marital relationship between the husband and wife” referenced in KRS 406.011 can certainly be said to “cease” when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.
Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.
Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.
I would have loved to have been a fly on the wall as the Kentucky Supreme Court deliberated this four to three decision which we reported on yesterday here. I am unaware of another family court case creating such a split among the justices. The 47 pages reveal highly charged emotions. The Opinion of the Court by Justice Minton and joined by Justice Lambert appears to try to take the emotion out of the debate but splits hairs to reach the result. Justice Abramson’s dissent in which Justice Schroder joined is passionate and I think well reasoned. If a child carries the DNA of a man other than the husband, it is common sense that the child is not born of the marriage. The concurring Opinion by Justice Cunningham fumes about the morality of it all, interjects words like “interloper” (but declines to judge the wife’s infidelity), and I wonder how his opinion would have been written if the husband and wife were divorcing rather than reconciled. His regret over the abolition of the tort of alienation of affections leaving the “innocent victim of betrayal” without “recourse against the interloping adulterer” is telling. My first jury trial 25 years ago was an alienation of affections case and I can tell you Kentucky abolished that tort none too soon.
The legislature could deal with this result by adoption of the Uniform Parentage Act, bringing Kentucky into the mainstream of states across the country. This act has been endorsed by both the American Academy of Matrimonial Lawyers and the American Bar Association.
In the absence of similar legislation I would not be surprised to see perfected constitutional arguments raised, perhaps yet in this case. The Kentucky Supreme Court expressly declined to rule on the due process and equal protection arguments because they were not procedurally addressed in the trial court. By the way the opinion of the court was written I wonder if Justice Minton might be a “swing vote” on this issue. Even had he not announced his resignation, unless his thinking changed, I would not have expected Chief Justice Lambert to join ranks with the dissenters because of his comment in another case that some things should just be kept secret. Maybe this case was the last straw?
Andrew Wolfson reports in today's Courier Journal Court Rejects Paternity Rights For Man In Affair, online here. I didn't see a peep about it in the Lexington Herald-Leader.
The bio-dad left the following comment yesterday, which I have edited slightly to remove certain allegations that I am unable to verify: As the REAL father, I'd like to say that today is a very sad day for everyone who believes truth and honesty hold value. It was through deception, a lengthy extra-marital affair, that my son was conceived and now Kentucky's highest court believes such deception should not end. I long ago accepted that having a 1 1/2 year affair with Julia Ricketts was wrong but this decision absconds her from any responsibility. I believe this ruling if not overturned will have a detrimental effect upon the rights of biological fathers in Kentucky. Essentially, my rights as a biological father have been terminated without a day in court. This puts absolute power in the hands of mothers.
The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims by a man other than her husband “where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.
Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say the “severely wounded institution of marriage in Kentucky surely protects the parties from unwanted interlopers claiming parenthood of a child conceived and born during their coverture.”
Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.
I have followed with interest the mounting clamor for fixed fees in divorce cases. I loved North Carolina attorney Lee Rosen’s quote in an ABA Journal e•report, “If someone at Lockheed can put a price on a jet, a lawyer can put a price on a case – the variables they deal with are so much more complicated than those we deal with… We should be expert enough in our areas of law so that we can do it.” After many years I cannot predict with much accuracy. How do you know after one interview whether the client or spouse has good records or any records tracing that nonmarital interest? You have never met the spouse and probably don't know who is representing him/her so it is virtually impossible to gauge whether the case will proceed with open and forthright discovery and a cooperative sense of collegiality or whether you will be in court often and taking many depositions. How to know whether this is the case that will have a child related issue after every exchange of the children? What we can do, however, is spread the risk. Under fixed fees some cases will be financial losers and others will be profitable.
Rosen’s website has a fee calculator so prospective clients who answer a few questions can find the range for legal fees they would pay his firm. Once the few simple questions are answered “yes” or “no,” a range of fees can be found for cases that settle without filing a lawsuit and a separate range can then be accessed for litigation fees. The actual fee, of course, is set in a meeting with the client because the web based calculator cannot cover all scenarios. The ranges were developed after Rosen lawyers analyzed five years of their cases. At first blush they appear to be a very reasonable approach.
One could quibble that the lowest fees published on the website are too high; most of us handle many cases for less than $6,000. This has the probably intended effect of discouraging calls from those who cannot afford his firm's services. For clients with a fixed fee retainer, however, $6,000 may be on spot as the hourly rate mitigates huge numbers of phone calls and emails. On the other hand, the fee calculator does not take into account complicating issues such as relocation, hidden assets, multiple businesses, legal questions of first impression, and personality disorders. Perhaps before settling on a definitive fee in the interview, the lawyer takes such matters into account.
All in all, it’s a good step in the right direction. We are in the process of analyzing our historical fees and considering whether to offer clients a fixed fee option. We could do it today and use Rosen's numbers and methodology if I could satisfy myself that those fees are fair. I would prefer to have my own basis for the numbers. Some clients would end up paying more with a fixed fee as opposed to an hourly rate and some would save money, but for those who justifiably want a sum certain, the time has come.
UPDATE: A comment from William Wilson, Indiana Family Law:
The worry about getting the fixed fee "right" stems from our brains looking at everything in terms of hours having value. If we can break that habit, then fixed fees aren't so worrisome.
An analogy (albeit a poor one) is a car: for the most part, auto makers can produce a $15,000 car in the same amount of time that they can produce a $50,000 car, yet they do not charge us based upon the number of hours that went into making the car. They charge us based upon the value of what they sell and we want to buy.
For clients, it's easier for them to say "yeah, it's worth $2,500 for me to get this divorce" than to say "I'm willing to have you put X hours into the case." The other side of the coin is the lawyer saying "the work I did was worth $2,500" or "the work I did was probably worth more than $2,500."
We all have cases where we put more time in than we thought we would, but many of those cases also end up with unpaid client bills. The end result is the same--our expectation of being paid a fair amount was not met.
But, on the flip side, there are those cases where we can quote a $2,500 fee and get it done quickly. We shouldn't feel bad about "making more" than we would have under an hourly rate--for the client, the end result is the same.
In a nutshell, hourly billing has many flaws. Some things we do as lawyers can be done very quickly, but are worth more than the time it takes to do them. It's easier for clients to understand the value of achieving a goal--like obtaining the divorce--than to understand how much time goes into doing discovery and the resulting fees based on an hourly rate.
I hope that makes sense--I haven't had my morning OJ yet.
Don't be afraid of flat fees. I've been making that move, and clients seem very comfortable with the concept. I figure I will quote the fee a little higher, and in the end, if I feel the fee was a bit high, I can always reduce it--and you can imagine how much clients will appreciate that.
Through her family law private practice and during her tenure as a Jefferson County Family Court judge, most Louisville family law attorneys knew and loved Judge Kathleen Voor Montano. Her death at age 46 is heartbreaking.
All Jefferson County Court dockets except the Family Court Emergency Docket are cancelled on Friday, April 25, 2008 so that the judges can attend Judge Montano's funeral at 11:00 a.m. The Emergency Docket for Family Court, all divisions, will be held in Family Court 8 at 1:00 p.m. A senior judge from out of county will be covering that docket.
Judicial funerals in this state are respectful pagentries honoring judicial service with all living past and present judges, in black robes, filing in together. Following Justice McAnulty's funeral just a few months ago, we are not ready for another, especially not for a youthful jurist with such promise.
The ABA-APA Joint Conference, Reconceptualizing Child Custody: Past, Present and Future, will be April 30-May 3, 2008 in Chicago. The summary provided by the ABA: Family lawyers and psychologists are often confronted with issues of mutual concern, including working with high-conflict families; participating in custody evaluations; relocation; representation of children; and allegations of alienation, sexual abuse, and domestic violence.
The 34 plenaries and breakout sessions will span three full days and allow attendees the opportunity to learn from judges, lawyers, psychologists, researchers, and academicians in a number of settings, including a mock hearing.
Register online here. The tentative agenda is here.
The fourth Biennial AICPA/AAML National Conference on Divorce will be May 8-9, 2008 at Caesar’s Palace in Las Vegas. There will be an optional Wednesday afternoon pre-conference workshop. The stellar lineup is as follows: Emerging Issues in Discount Rates, Capitalization Rates and Valuation Discounts, Types of Business Organizations and Related Tax Attributes, Case Law Update, Computer Forensic Techniques, Dissecting a Business Valuation Report, Clash of Tax and Divorce Planning, Hot Tips Panel, Ethical Conundrums, Reading Tax Returns, Collaborative Law, Review of Rules of Evidence, and Asset or Income, Double Dip; Concept of Income in Divorce.
Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together. The parties agreed that Picklesimer would be artificially inseminated. Their child was born in 2005, and their relationship ended in 2006. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody. The order was entered in a neighboring county to avoid publicity in their own community. The TC entered the order without taking any evidence. No summons was issued, but neither party challenged the lack of notice. After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.
Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins. Picklesimer argued that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody. On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.
TC’s jurisdiction and venue to enter custody orders: CA held that Picklesimer had notice of the proceedings since she filed an entry of appearance and never challenged the agreed order establishing Mullins as a de facto custodian. CA also held that venue was waived when both parties filed pleadings with no objection to venue.
Mullins’ standing to pursue joint custody/ Picklesimer’s waiver of her superior right to cusody: A nonparent, who does not qualify as a de facto custodian, may seek custody of a child if the nonparent shows that 1) the parent is unfit by clear and convincing evidence, or 2) the parent has waived his/her superior right to custody. A finding of waiver requires a voluntary and intentional surrender or relinquishment of a known right. A court order granting a nonparent visitation does not constitute a waiver of the parent’s superior right to custody. As Picklesimer did not waive her superior right to custody of the child, Mullins had no standing to pursue custody.
TC error in invalidating the agreed judgment of joint custody: The judgment establishing Mullins as a de facto custodian was entered based on incorrect evidence. Mullins was never the primary caregiver and the primary financial provider for the child, as the statute requires. The pleadings were drafted to convince the TC that a hearing was not necessary on the matter. CA held that the pleadings and conduct constituted a fraud upon the court. The CA found that had the TC held a hearing, the TC would not have signed the order. The judgment declaring Mullins a de facto custodian is invalid.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates
The parties, never married, entered into a series of child custody and support agreements. The last agreement in February 2005 provided that Fite have physical custody of the child again. Hoofring was not to pay any child support, but he was to maintain health insurance for the child until the end of 2005. The agreement also released Fite from any liability regarding the child support arrearages she owed to Hoofring.
In 2006 Hoofring insisted that Fite obtain health insurance for the child. Fite then pursued a modification of child support. The TC ordered that Hoofring pay $672.14 per month in child support, retroactive to the February 2005 agreed order, and maintain health insurance for the child. The TC also ordered Fite to pay $5,183.07 in arrearages. Hoofring filed a motion to vacate the order or, in the alternative, hold an evidentiary hearing. In May 2007, after a full evidentiary hearing on all issues, the TC ordered that Hoofring pay $646 per month in child support, retroactive to October 2006, and maintain the child’s health insurance. The TC did not address Fite’s arrearages, but noted that the February 2005 agreed order was an enforceable order. Hoofring appealed.
The COA noted that a party is entitled to modification of child support if he/she can show a material change in circumstances that is substantial and continuing. KRS 403.213. The child support obligation of $646 per month is clearly a 15% increase over the prior amount of $0. Moreover, while parties may enter agreements regarding child support, the terms are not binding on the trial court under KRS 403.180(2). In addition, KRS 403.180(6) prohibits any attempts to preclude modification of agreements concerning child support, custody, or visitation. Therefore, the TC retained jurisdiction over the child support and is not bound by the parties’ agreement. COA held that TC properly exercised its discretion to modify the child support obligation, while properly enforcing the other provisions of the 2005 agreed order, which release Fite from liability for her past arrearage. AFFIRMED.