Downs v. Downs
PANEL: CLAYTON PRESIDING; VANMETER AND KNOPF CONCUR
At TC, Adult Child argued that per terms of Marital Settlement Agreement between his biological parents, a constructive trust should be imposed on deceased Dad’s life insurance proceeds. Adult Child appealed from TC’s order granting Summary Judgment to Stepmother.
Adult Child was born in 1981 and his biological parents divorced in 1989. Per the terms of the parents’ Marital Settlement Agreement, the parents were to maintain any life insurance policies with “the infant child named as beneficiary.” Dad remarried in 1990 and died in 2002. His three life insurance policies all listed his wife (Stepmother) as beneficiary. Adult Child petitioned TC for imposition of constructive trust of the life insurance proceeds. Stepmother moved for and was granted summary judgment.
Stepmother first argued that Adult Child’s action was time-barred by the statute of limitations as Adult Child was seeking enforcement of a contract, which has a 15 year limitation per KRS 413.090. However, CA noted that the fifteen year period does not begin until the breach of the contract occurs, and that, furthermore, KRS 413.170 extends the time limit for minors to fifteen years from the time that the age of majority is reached. Thus, under either approach, the action was not time-barred.
Stepmother next argued that the words “infant child” were not words of identification but rather limited the referenced requirements to the child’s infancy, and thus Dad was not required to keep Adult Child as beneficiary once he reached the age of majority. TC and CA agreed. CA noted that only ambiguous contracts can be interpreted with the use of extrinsic evidence, and that if a contract can be interpreted with only one reasonable interpretation, it is not ambiguous. CA found that, due to the use of the terms “infant child” and “child” throughout the Marital Settlement Agreement, the only reasonable interpretation was that the parents were to maintain any life insurance policies with the child during his minority. Thus, Dad was not required to list Adult Child as a beneficiary on any of his life insurance policies.
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Downs v. Downs. Marital Settlement Agreement named infant child Jeremy beneficiary of life insurance. Father died after child was an adult and his new wife was beneficiary. Child sued new wife under constructive trust theory. Trial court granted summary judgment to new wife. Words “infant child” described child’s status as a minor and thus MSA provided no obligation to name child beneficiary after he became an adult.
Father appealed findings in a dependency, abuse, and neglect case, in which it was alleged that the father sexually abused his eldest child, M.T. Prior to August 2005, the maternal grandparents took M.T. to the hospital where she was examined for sexual abuse, which was not substantiated. In August 2005, the mother and the maternal grandparents took M.T. and her sibling, K.T., to the hospital to be examined for sexual abuse. M.T. admitted to the examiner that she had been abused by her father, the younger child denied any abuse, and no physical evidence was found that either child had been abused. A dependency, abuse, and neglect petition was filed in November 2005 and the court issued a temporary order prohibiting the father from having contact with any of his four children.
In January 2006, K.T. told an examiner at the hospital that she had been sexually abused and had witnessed her father sexually abusing her siblings. The father was then charged with four counts of sexual abuse in the first degree.
The first adjudication of the abuse petition was overturned due to the district court finding the children were abused based solely on the mother’s admission. At the second adjudication, held after the father was found not guilty of the criminal charges, the court found that M.T. had been sexually abused. The allegations concerning the remaining children were dismissed. The court then ordered that the four children be placed with the mother and that the father to have no contact. The father appealed.
The COA reversed and remanded based on the following errors: 1) The presence of the mother and maternal grandparents during the questioning of M.T. constituted reversible error, since the court made no finding pursuant to KRS 421.350 that their presence during M.T.’s testimony would benefit her welfare and well-being; 2) the trial court’s failure to conduct a hearing to determine whether there was a compelling need to interview the child in the absence of the father’s presence constituted reversible error; and 3) the trial court abused its discretion when it refused to permit the father to question the mother concerning her affair with a pastor who had been previously removed from a church because of allegations of sexual abuse.
The father raised other errors that the COA found unconvincing. Of note is the father’s allegation that he received ineffective assistance of counsel. While the COA ultimately rejected his claim, it set out the standard of review for such claims in dependency proceedings. “We hold that if counsel’s errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective.” (p. 10). The Court warned that the burden is very high and advised that such claims are properly raised on direct appeal, not in a collateral proceeding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates
The parties divorced in 2001 and were granted joint custody of their two minor children. The mother was named primary residential custodian. In 2004, the father filed a motion to modify the custody decree due to his concerns regarding the mother’s intention to move with the children and her engagement to an individual with past mental and addiction problems. During the pendency of the action, the mother was granted permission to relocate from Hardin County to Jefferson County with the children and her, now, new husband. An evidentiary hearing was held in 2006 and the Family Court named the father the primary residential custodian based on the best interests of the child standard. After the mother’s motion to alter, amend, or vacate was overruled, she appealed. The COA held that the Family Court abused its discretion and proceeded without subject matter jurisdiction, and therefore reversed the Family Court’s ruling.
The SC granted discretionary review. The SC found that the Family Court did have subject matter jurisdiction, since the Family Court determined that the moving papers were sufficient. It also found that the Family Court did not abuse its discretion, as the Family Court issued a thorough findings of fact and conclusions of law in excess of 16 pages.
Dissenting Opinion: It was an abuse of discretion in the trial court’s finding that there was substantial evidence to justify a change of custody. The evidence showed that the children are doing well with their mother. The majority of the fact finding concerned the new husband’s past instability. However, there was no evidence that the new husband had suffered any problems during his relationship with the mother or in the last five years. The trial court based its findings on speculation of what might occur in the future. Also, KRS 403.270(3) was completely ignored, as there was no evidence that the mother’s new relationship has affected her relationship with the children. More proof was needed to justify uprooting the children from their mother’s care.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates