BEARDEN V. MAULDIN
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: BUCKINGHAM PRESIDING; LAMBERT AND MOORE CONCUR
Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.
Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.
Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.
TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents.
Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.
Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.
Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.
Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.
MCKINNEY V. MCKINNEY
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON PRESIDING; NICKELL, GRAVES CONCUR
Ex-Husband appealed from TC’s order imputing to him a monthly income of $8,000 for the purposes of establishing child support in accordance with the Kentucky Child Support Guidelines.
Ex-Husband and Ex-Wife entered into a Marital Settlement Agreement that explicitly reserved the issues of child support expenses. After hearing, TC entered an order finding that Ex-Husband earned income from part-time work as an attorney but primarily by “flipping” real estate, imputing income to Ex-Husband of $8,000 per month and ordering child support in accordance with the Kentucky Child Support Guidelines. However, TC did not parse out its calculation of Ex-Husband’s imputed $8,000 monthly income. Ex-Husband subsequently filed a CR 59 motion to alter, amend or vacate, as well as a motion pursuant to CR 52.02 requesting additional findings of fact regarding the imputation of $8,000 monthly income. TC denied the motion for additional findings and this appeal ensued.
Ex-Husband argued that there was no evidence submitted to support TC’s imputation of $8,000 in monthly income and that, at a minimum, he was entitled to additional findings as to how TC arrived at the $8,000 figure. Ex-Wife responds that TC, in imputing income to both parties, opted to calculate child support based on the “potential income” of each party and that TC was not required to segregate Ex-Husband’s potential earnings as an attorney from those generated by the real estate. CA found that the standard of review for appellate courts in child support matters is abuse of discretion.
CR 52.01 provides that in all actions tried upon the facts without a jury, the trial court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment. Thus, the issue herein is whether the TC’s omitted finding involves a matter which was essential to TC's judgment. CA found that, other than generally stating that the imputed income was derived from Ex-Husband’s law practice, rental properties and capital gains, TC provided no explanation as to how it reached the $8,000 a month figure. Without adequate factual findings, CA held that TC's decision could not be meaningfully reviewed and that the omitted finding involved a matter which was essential to TC's judgment. Thus, TC erred by denying Ex-Husband’s motion for additional factual findings on this issue and the matter must be remanded for additional findings.
CA’S NOTE TO SC REQUESTING MODIFICATION OF RULES:
“In rendering the decision herein, we are cognizant of the fact that CR 52.01 specifically states that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41.02.” Although the instant appeal arises from “decisions of motions,” the issue of child support was initially raised in Ex-Wife’s petition for dissolution and was only resolved after an evidentiary hearing. Thus, we conclude that the crux of this appeal stems from an action “tried upon the facts without a jury[,]” as set forth in CR 52.01. However, we are also of the opinion that CR 52.01, as currently written, is not only overbroad but illogical. The majority of orders and judgments from TC originate from a motion. Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make -7- findings of fact when ruling on a motion of any kind except as provided in CR 41.022 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review. We would urge our Supreme Court and Rules Committee to review and revise CR 52.01.”
Reversed and remanded.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.
The Kentucky Supreme Court decided Coffman v. Rankin today, a 4 – 3 decision reversing the Court of Appeals and reinstating the trial court change in the primary residence of the parties’ two children, now 13 and 10 years old.
The Opinion of the Court by Chief Justice Lambert, joined by Justices Abramson, Minton and Noble, held that a verified petition to modify custody is sufficient to confer subject matter jurisdiction on the trial court. It ruled that the Court of Appeals, in going on to address the merits of the change in primary residence, inappropriately applied a serious endangerment standard rather than the “best interest” standard. The majority opinion found that the Family Court applied the correct standard and there was no abuse of discretion.
The dissent by Justice Cunningham, joined by Justices Schroeder and Scott, agrees that the trial court had subject matter jurisdiction and agreed that the appropriate standard was “best interest” rather than serious endangerment. They dissented, however, because almost all of the fact finding had to do with mental and emotional instability of the children’s stepfather that had occurred five years in the past and which did not affect the minor children. Little of the testimony involved the children, who clearly wanted their mother to remain their primary custodial parent. The dissent passionately argued “To find that this evidence is sufficient to change custody away from a mother, who has had the children all of their lives, will set a precedent that will create justifiable apprehension for all custodial parents throughout the state and will undermine the much needed stability for children of broken homes.” A digest will follow shortly.
The court chose not to use this case as part of a trio on relocation. We have numerous posts on the other relocation cases under submission at the Kentucky Supreme Court, Pennington v. Marcum and Frances v. Frances here, here, here, etc. No decisions will be released in July so it will be at least two months before we hear where we are headed on relocation and possible revisiting of Fenwick v. Fenwick.
McKinney v. McKinney, court imputed income to part-time attorney and real estate “flipper” but did not make finding he was voluntarily underemployed and did not set out more specific findings. Since findings are essential to this judgment, case was reversed for further findings. A digest will follow. There is no link to the case here because the links on the Court of Appeals website are broken again this week. I found the decision by going to this site, searching for "June 13, 2008" and then clincking 2007 CA 349.
I am glad Kentucky Law Review posted about the upcoming IdeaFestival. (Thanks, Mike, for the nice words.) While 9/25-9/27/08 has long been on my calendar, I didn't realize the agenda was now available: From the Lexingon Herald-Leader:
Scott Jones, the man who invented voicemail, will be there. So will J. Richard Gott, a Princeton University astrophysicist.
Richard Kogan, a psychiatrist and world-class concert pianist, will perform and lecture on the genius of Mozart. Immaculee Llibagiza, the international peace activist, will talk about what it was like to survive genocide in Rwanda.
Diandra Leslie-Pelecky will discuss her book The Physics of NASCAR, which examines how race cars can go so fast. Nassim Nicholas Taleb, a risk-management expert and derivatives trader, will discuss his book, The Black Swan: The Impact of the Highly Improbable, the top-selling non-fiction title of 2007. Will Shortz, the crossword editor of The New York Times, will talk about puzzles.
The European architect Emiliano Gandolfi will launch the Curry Stone Design Prize, a new $100,000 award for innovation in architecture, to be administered by the University of Kentucky's College of Design.
Vova Galchenko, a world-champion juggler, will demonstrate his skill and discuss the thinking behind it. Amy Chua, who analyzes global politics and economics, will discuss the rise and fall of hyperpowers.
They are among more than 30 presenters recruited for this year's festival, said founder Kris Kimel, president of the Lexington-based Kentucky Science and Technology Corp. Program details were announced Tuesday.
"They're all either doing something or thinking about something that's really cutting-edge," Kimel said.
Event pass info is here. Tickets for individual events will be available July 15. Not as many events are free this year, but if the festival is half as good as it was last year, it will be worth every penny and all the time out of the office.
Many of the links to the opinions are broken so I can't be sure, but there appear to be no "to be published" family law Court of Appeals cases from June 6, 2008.
UPDATE: Had I been keeping up with Kentucky Law Review daily, I would have seen this post and learned how to self-fix the links. Nonetheless, no family law cases were among the to be published decisions.