Kerr v. Osborne. Under facts of this case, four months was not an unreasonable amount of time to move to vacate custody award and custody order was not supported by substantial evidence. Digest to follow.
Distressed that arbitration is not a viable alternative to spouses who cannot afford to pay an arbitrator and holding that the approval of the arbitration process by a family court constitutes an improper delegation of its constitutional responsibility, the Kentucky Court of Appeals recently barred arbitration in divorce cases.
Until then, family law arbitration had been available in Kentucky as a voluntary, alternative resolution process for divorcing spouses wishing to employ a private individual as their neutral decision-maker to determine how their assets should be valued and divided.Spouses opt in to the arbitration process for many reasons.Some have a complex valuation matter best resolved by someone with the specialized expertise of a particular arbitrator; some want a quicker resolution process than the court system can provide; some desire a less formal process than the traditional adjudicatory one; some hope to reduce the trauma and anxiety of marital litigation; and some hope to resolve sensitive matters in a private forum.
Controversy should not accompany the availability of arbitration, a process that allows husbands and wives to resolve disputes which will have significant, long-term and possibly deleterious effects on their lives by choosing the person to resolve those disputes.
In the most worrisome aspect of the decision, the Court concluded that arbitration creates a class system where affluent individuals can pay for a private judge while persons of lesser means must have their case heard by elected judges, in perhaps a less speedy manner.This ignores the benefit of arbitration on the court system itself— if complex cases are removed from the court dockets, more time is available for other persons needing access to the court.While our elected judges are highly competent, their case loads are backbreaking and the wait for resolution of discovery disputes and a final trial of a case can be long.The judicial system is under unconscionable budgetary constraints that limit the court’s resources.When parties find a path to resolution of their issues without the use of the courts, other parties and the system overall benefit.
Although not explicitly stated in the opinion, the Court revealed its concern over the state’s parens patriae power by references to the impropriety of arbitration of child-related matters.This may be a legitimate concern, but the wholesale elimination of arbitration even in matters that are strictly financial “throws out the baby with the bathwater.”Even if legislation or case law does not carve out appropriate, specific exceptions for arbitration processes so that the state’s parens patriae power over children is left intact, there still remains the parties’ ability to enter arbitration agreements only as to financial issues.
The Court also expressed concern that referring cases for arbitration impermissibly allowed elected judges to delegate their adjudicatory responsibilities.This conclusion impliedly suggests that family court judges have some control over whether a case is arbitrated.They do not.Spouses go to arbitration because they agree to do so and ask the court for permission.I know of no judge in this Commonwealth who has ever abrogated responsibility to decide a case by ordering arbitration.
This state made great progress by amending our Constitution so that we now havefamily courts providing “one family, one judge.”Families returning to court now have a judge who is, ideally, familiar with them and with their issues.But the Family Court system and the availability of arbitration can co-exist.By approving arbitrated decisions, judges are not shirking their responsibility to decide disputes before them.They are instead granting the parties’ desire to resolve their disputes outside of the court system.
Banning family law arbitration is a sad, regressive step for this Commonwealth.
Were circumstances different, I would patiently wait for one of the parties to move the Kentucky Supreme Court to grant discretionary review of this case, for neither of the parties had contested the validity of their arbitration agreement or the arbitration process in their appeal, and their arbitration contract permitted appeal of the arbitrator’s decision.The Supreme Court would likely grant discretionary review in a case that will impact so many parties and even the family court system.Sadly, however, one of the spouses died a few days before the decision was issued.As it is now unlikely that any disputed personal issues remain to be resolved, a motion to seek discretionary review by the Kentucky Supreme Court may not be forthcoming.The Kentucky Supreme Court may have within its power, without motion of either party, to order the Court of Appeals decision to be unpublished or to order this appellate case transferred to the Kentucky Supreme Court.Because the Court of Appeals decision is of such great import, such action is encouraged if it is possible.
Published:Affirming in Part, Vacating in Part, and Remanding
Husband appealed from DVO entered by family court (FC), prohibiting him from any contact with Wife and Children for three years, and from criminal contempt for willful violation of EPO.
Husband and Wife lived in Ohio with Children, three girls ages 10, 6, and 4.Wife moved to Kentucky with Children and filed for EPO.In the Petition, Wife alleged that Husband had made threats against her, that he hada pending criminal complaint regarding inappropriate communication with a 13 year old girl, that he had incestuous relationship with siblings as a child, and that he had been fired due to inappropriate internet contact with a young girl.EPO was issued and scheduled a hearing, which was subsequently rescheduled because Husband had not been served.After hearing FC granted a DVO on behalf of Wife and Children, gave temporary custody of Children to Wife, and directed that Husband have no contact due to his past misconduct. However, FC specified that custody and visitation orders could be modified by Ohio court in pending dissolution action. Finally, without making specific findings, FC held Husband in contempt of court for his violation of the EPO. On appeal, Husband argued that there was no evidence warranting DVO with respect to Children, that the extension of the DVO for three years was unreasonable given the pending dissolution action in Ohio, and that FC erred by holding him in contempt because he did not attempt to contact Wife or Children after he was personally served with the EPO.
DVO as to Children:
CA acknowledged Wife’s legitimate concerns as to Children’s safety with Husband due to allegations in record that Husband engaged in “inappropriate” contact with juvenile girls, Husband admitting to sending inappropriate text messages to a 13-year old girl, Husband havingbeen fired from his employment due to viewing of pornography and sending inappropriate “chat” messages to juvenile girls, and Husband admitting that he had engaged in inappropriate contact with his sisters while he was a teenager. CA nonetheless found that there was no substantial evidence that Husband’s behavior meets the standard for granting a DVO with respect to the children, because there were no allegations that Husband has ever engaged in any inappropriate conduct toward his daughters and his actions involving other children did not rise to the level suggesting that he presents any imminent danger to his own children, and those concerns are better addressed as part of the custody proceedings in the dissolution action.However, FC had jurisdiction to make emergency custody award to Wife in her DVO, which Husband did not contest.CA therefore did not disturb custody and visitation orders.
DVO Three Year Duration:
Once the court made a finding that grounds existed for entry of a DVO as to Wife, it had the authority to fix a period for the DVO to be effective for up to three years.There are no statutory factors to be met in determining the duration of the DVO. CA held that while the evidence might have supported a shorter duration for the DVO, FC did not abuse its discretion.
Criminal Contempt for EPO Violation:
CA noted that FC did not make any specific findings supporting its conclusion that Husband had intentionally violated the no-contact provisions of the EPO, and that there is no clear evidence in the record concerning when Husband was personally served with the EPO. An EPO is not effective until the sooner of the time of personal service or when the respondent is given notice of the existence and terms of the order by a peace officer or the court.TC might have concluded due to Husband’s contradictory testimony as to when he was served with the EPO that he made contact with the children after service. However, FC did not make such a finding.Without definitive evidence that Husband had been served before he attempted to call the children, CA held that FC could not find beyond a reasonable doubt that Husband willfully violated the terms of the EPO.CA also held that Husband’s mother’s contact did not amount to a willful violation of the EPO. Though EPOs and DVOs are typically interpreted to preclude both direct and indirect contact, including contact by third parties, this was not specified in the EPO.Moreover, Wife informed FC that she expected that she had no objection to Husband’s mother’s contact.CA held that even if Husband requested the contact, such did not amount to a willful violation of the EPO under the circumstances.
Ex-Husband and Ex-Wife appealed and cross-appealed, on substantive grounds, Findings of Fact, Conclusions of Law and Judgment prepared by Arbitrator and signed and entered by family court (FC).CA, holding that family law disputes are not arbitratable, reversed and remanded to FC for trial.
After the parties commenced divorce proceedings and entered a limited decree of dissolution, they entered an Arbitration Agreement vesting the arbitrator with absolute authority to resolve all remaining issues between the parties. The arbitrator held a hearing on those issues and rendered written findings of fact, conclusions of law, and judgment adjudicating same. Per the terms of the agreed order, the FC entered the arbitrator’s judgment as a judgment of the court without independent judicial review or without an opportunity of either party to submit “objections” to the court. The arbitration agreement provided for appellate review upon the same ground as if decided by the FC.
CA first found that if the arbitration statute of KRS 417.160(1) applied, CA would be required to affirm both appeals as the requirements of that statute, providing only limited grounds for appeal, none of which are substantive, had not been met.CA disagreed with parties’ contention that the case could be reviewed as a “hybrid” proceeding in which the requirements of KRS 417.160 could be ignored.
Improper Delegation of Judicial Duties and Powers to the Arbitrator
CA held that by following terms of the Arbitration Agreement, FC improperly delegated its constitutional duties, including its decision making authority to an arbitrator in contravention of Section 109 of the Kentucky Constitution and in circumvention of the legislative intent regarding the duties of family court judges.An improper delegation of the court’s powers has occurred if the decision-making process is not under the control of the FC or if the judgment is not a product of the deliberations of the trial judge’s mind. Further, the authority to issue sanctions by awarding attorney’s fees or to sanction a party for contempt are exclusively reserved to the discretion of the FC.Lastly, since domestic relations commissioners in counties establishing family courts have been abolished, there is no authority that allows FC judges to delegate cases to third parties, including an arbitrator.
Arbitration Not Within Purview of Local Rules of Court
The delegation of judicial duties to the arbitrator is in direct violation of the JFRP and JFRP 711 which requires cases not otherwise settled to be heard by trial before a judge.Arbitration is not a viable alternative to parties with lower incomes who can not afford to pay an arbitrator a high hourly rate, effectively creating a class system within Jefferson Family Court proceedings where more affluent individuals have the opportunity to pay for a “private judge” to conduct their proceedings – while parties of lesser means and income must have their case heard by FC judges in perhaps a less expeditious time frame. Such a system that permits affluent individuals the opportunity to expedite the disposition of their domestic relations cases in FC that is cost prohibitive to persons of lesser incomes is both unconscionable and unconstitutional on its face.
Kentucky Uniform Arbitration Act Does Not Apply to Family Law Cases
A dissolution proceeding is not an arbitratable controversy within the meaning of KRS 417.050, which defines those cases that may be arbitrated. KRS 417.050 provides that “any existing controversy” may be subject to arbitration by written agreement of the parties. Because of the state’s compelling interests in the area of domestic relations and the court’s unique protective role in such area of the law, a domestic relations proceeding is not an arbitratable controversy within the meaning of KRS 417.050. These types of domestic disputes are not amenable to binding arbitration absent independent and meaningful judicial oversight.
Furthermore, the Arbitration Act clearly requires that a party be given the opportunity to challenge the arbitration award in court and requires the court to consider such challenge before confirming the arbitration award. In this case, there was no confirmation process.FC endorsed the arbitration award without any independent judicial review and without the opportunity of either party to challenge the award before the court. Such arbitration procedure is clearly contrary to the express provisions of the Arbitration Act, thus rendering the judgment unenforceable on this ground as well.
Under both the constitution and applicable law in Kentucky, the Findings of Fact, Conclusions of Law and Judgment entered by FC are neither enforceable nor legally valid. Under JFRP 702 and under CR 52.01, FC is required to conduct a hearing or trial upon the pending dissolution action and to make independent findings of fact and conclusions of law. This is a case of first impression in Kentucky. Accordingly, this opinion is limited to the cases now on appeal and has prospective application only as to any pending or future arbitration proceedings in the Jefferson FC or any other FC in Kentucky.
Stepfather appealed from TC order denying his petition to involuntarily terminate the parental rights of Biological Father to Son, and to adopt the child.
TC’s sole reason for denying the petition was Father’s sporadic payment of child support by wage deduction over approximately eight years of the child’s life.TC had stated it would have granted the relief except for the fact that Father had paid $23,000.00 in child support over the years, albeit on a sporadic basis by wage deduction and notwithstanding that he was over $8,000.00 in arrears. TC stated that, as a matter of law, that this fact, and this fact alone, precluded a finding of abandonment or failure to provide care or essentials under KRS 199.502 (1), the only possible grounds for termination in this case.
Although payment of support is a significant factor in determining whether a parent has abandoned a child, it is but one factor to be considered. Abandonment is not actually defined in KY jurisprudence in the context of termination proceedings. Rather, abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child. The evidence presented to TC clearly reveals Father exhibited such conduct.Payment of support, though significant, is but one factor to consider among the totality of circumstances when determining parental abandonment.Remanded to TC for determination as to whether Father’s sporadic payment of support outweighs other important considerations in determining the propriety of terminating his parental rights.
Cabinet appealed trial court order denying its petition to terminate the parental rights of D.G.R. and T.B.H. to their minor child.
A.T.H was twelve at the time of the termination hearing.He had been diagnosed with autistic disorder, attention deficit hyperactivity disorder, and possible bipolar disorder.D.G.R. and T.B.H. are the child’s parents, who never married but lived together. Three abuse petitions were filed by the Cabinet over a four year period.The Cabinet then filed a petition to terminate the mother and father’s parental rights.Trial court found by clear and convincing evidence that the child had been abused and neglected and that the child had been in foster care for a total of forty-three months.However, the trial court denied the Cabinet’s petition on the basis that termination was not in the child’s best interests.Cabinet appealed.
COA reversed and remanded to the trial court for an order terminating the mother and father’s parental rights.All of the factors in KRS 625.090(3) weighed in favor of termination being in the child’s best interests.There was overwhelming evidence that the parents, on more than one occasion, either abused the child or allowed the child to be abused, the parents were guilty of neglect regarding a sexual disease the child caught from the father, the parents used corporal punishment on the child, the child was not appropriately stimulated, the house was unsanitary, the parents lacked empathy toward the child, and the parents were unable and unwilling to provide basic needs for the child, much less provide for his special needs.
DISSENT: Henry, Senior Judge
While the majority noted that it cannot disturb the findings of the trial court unless no substantial evidence exists in the record to support them, the majority concluded that the factual findings of the trial court were not based on substantial evidence.Instead of finding that the trial court abused its discretion or was clearly erroneous in relying on the testimony of the occupational therapist, the majority just dismissed the testimony as minimal.The majority incorrectly substituted its judgment for the trial court, which held hearings, met the parties, and listened to the testimony face-to-face.It is easy to understand why the majority decided the way it did and there is no doubt the majority’s motives were pure.However, the majority’s method of reaching its decision was uunsound.