Harrison v. Leach. Reversed and remanded to Court of Appeals, as it may not sua sponte raise issue of standing, as standing is waived if not timely pled. A determination of the effect, if any, of the repeal of KRS 403.420 upon the ability of a nonparent who is not also a de facto custodian to file for custody must await a case in which that issue is directly presented. Digest to follow.
Appellant appealed from Circuit Court Order awarding Appellee attorney fees, expert fees, and costs incurred as a result of his motion to modify maintenance. The CA agreed with argument that TC lacked jurisdiction to enter the Order and reversed.
Parties were divorced in 1990 after 24-year marriage. In the divorce agreement, Appellant agreed to pay $3,000 a month in maintenance until Appellee remarried or one of the parties died. The agreement provided that if Appellee became more employable due to education she received with appellant’s financial assistance, this could be grounds for modification. Appellee earned a bachelor’s degree in 1995. In October, 2008, Appellant filed a motion to modify maintenance.
June 9, 2009, Appellee filed a motion for attorney fees and costs related to her defense of the motion to modify maintenance. On June 22, 2009, TC heard testimony on both motions.
On June 30, 2009, TC entered order finding that Appellant failed to establish sufficient grounds to support modification and denied the motion, and indicated the ruling was final and appealable. No appeal was taken. Appellee’s motion for fees was not addressed.
On July 1, 2009, Appellee’s attorney emailed the judge’s law clerk inquiring how to proceed with respect to the motion for fees, and on July 8, 2009 the clerk responded “I am on this, give me a day or two.”
On August 13, 2009, the judge’s secretary informed Appellant about the ex parte communication between Appellee’s attorney and the law clerk. Appellant’s counsel was advised that Appellee’s counsel had been instructed to file an attorney fee affidavit. Appellant’s attorney would then have a week to file a response, after which the judge would hear arguments on the motion for fees on September 4, 2009.
Appellant filed an objection to the TC’s consideration of the motion for fees, arguing that the court lacked jurisdiction to award fees and costs at this juncture and that such an award was unwarranted. On September 4, 2009 the TC heard arguments from counsel, and on September 16, 2009 awarded Appellee $19,161.80 in attorney fees. The TC found Appellant’s objection on “technical jurisdictional grounds” to be without merit and stated “… the June 9 motion was not ruled on until this date.” Thereafter, Appellant filed this appeal.
Appellant argued on appeal that the TC lacked jurisdiction to rule on Appellee’s motion for fees and costs, that Appellant was prejudiced by the TC staff’s ex parte communication with Appellee’s counsel, and that the award of fees and costs was unwarranted.
CA agreed with Appellant that the TC’s order denying his motion to modify was final and therefore the TC had lost jurisdiction to enter the subsequent order awarding fees because Appellee failed to timely request additional findings and modification of the Order pursuant to CR 52.02. The CA concluded the Order was inherently final because the case addressed a single claim which was the motion to modify maintenance. Appellee’s motion for fees did not constitute a separate claim.
Because the Order was final, there was a ten-day window during which the TC could modify or Appellee could move for modification of the ruling to include findings and a ruling on her motion for attorney fees. Appellee did not file a proper post-judgment motion. The ex parte communication between Appellee’s counsel and the judge’s law clerk was insufficient to toll the time for amendment. Therefore, entry of the order awarding Appellee attorney fees constitutes reversible error.
Appellant’s remaining two arguments were not addressed because the decision on the jurisdictional argument is determinative of the case as a whole.
Mitchell v. Mitchell, attorney fee award incidental to defense of motion to modify maintenance reversed where it was entered more than 10 days after court had denied maintenance modification motion and court lost jurisdiction. Digest to follow.
Father appealed from three orders, all related to child support.Father had previously appealed the first order, entered in May, 2006, but the CA affirmed FC and no discretionary review was sought.Subsequently, father filed motions requesting FC to vacate the 2006 Order.Father appealed FC’s denial of these motions in addition to the 2006 Order.
The CA declined to revisit the 2006 Order because it had already been appealed and affirmed.The CA no longer had jurisdiction to alter the opinion.After eliminating the issues in the 2006 Order, little remained for review.Father failed to advance any argument to support reversal nor were there any manifest errors.Thus, the Fayette Family Court Orders were affirmed.
The CA included a lengthy discussion of the importance of adhering to the format and briefing requirements mandated by the Kentucky Rules of Civil Procedure.When an appellate advocate fails to follow the rules, the CA may ignore the deficiency and proceed with the review, strike the brief or offending portions, or review the issues raised in the brief for manifest injustice only.This discussion is informative not only for pro se appellate advocates, but good review for their professional counterparts.
After review of the orders appealed from, the CA found no manifest errors and affirmed the Fayette Family Court.
Mother appealed from FC’s denial of her motion to relocate with the parties’ three minor children.
Divorce proceedings were initiated in June, 2004.In December, 2004 FC entered an order that the parties would share joint legal custody of their children.A bifurcated divorce decree entered in August, 2005 dissolved the marriage but reserved all other issues, including custody, with all temporary orders to remain in effect pending resolution.An agreed order entered March 21, 2007 stated that the parties would have joint legal custody, with mother the primary residential custodian.
On November 1, 2007 mother filed a motion to relocate to Virginia with the children.Father’s counsel stated his objection at the hearing on November 13, 2007.The court set a hearing date for February 7, 2008 and appointed a guardian ad litem.
Father filed a motion on January 30, 2008 for review of parenting time which was set to be heard the same date as the hearing on relocation.The GAL filed her report on February 4, 2008 stating that she did not believe the relocation was in the best interest of the children.On February 6, 2008 mother filed a motion for court to summarily grant her relocation because father had not complied with Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) and KRS 403.340 and 403.350.This was also set to be heard on February 7, 2008.
On February 7, 2008, father filed a motion for a change of custody with two affidavits.At the hearing, the judge requested briefs on the legal issues and gave mother an opportunity to file a response to father’s motion for change of custody.
Each party filed a memorandum and on June 2, 2008, the court held an unrecorded hearing in chambers.On August 11, 2008, the judge issued findings of fact and conclusions of law that father had submitted sufficient evidence of emotional harm to the children, requiring a full evidentiary hearing under KRS 403.340(2).
On October 23, 2008, the Kentucky Supreme Court rendered Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) which specifically addressed relocation issues and changing motion procedures previously mandated by Fenwick.
Before the hearing on October 31, 2008 father filed a motion to plead in the alternative for modification of visitation/timesharing to name him the residential parent, citing Pennington. The FC decided Pennington applied and that the best interests of the child standard applied to motions for relocation.On November 13, 2008, mother filed a motion for sole custody with no affidavits.
On January 6, 2009, the FC heard the remainder of the evidence and granted father’s oral motion to deny mother’s change of custody motion.Both parties filed position statements at the request of the court.
On March 30, 2009, FC issued an order denying mother’s motion to relocate and reserved all issues for future rulings.
Mother filed an appeal of the March 30 decision which was dismissed as premature because of unresolved reserved issues.The FC then entered an amended opinion and order on December 22, 2009, denying all other motions, maintaining the status quo, making no custody changes and stating the order was final and appealable.Mother appealed from the March 30, 2009 and December 22, 2008 orders.
CA did not find the three month period an unreasonable time in which to file father’s motion and cited Fowler v. Sowders, 151 S.W.3d 357 (Ky. App. 2004) which held that allegations of serious physical or emotional endangerment to a child were not required to support amotion for a change of custody.
The CA found no error in failing to follow Fenwick’s procedural mandates because Fenwick is not applicable to this case.
Mother further argued that FC retroactively applied Pennington and erred by the retroactive application of new law to substantive rights.CA disagreed distinguishing between statutes and regulations and Pennington, a judicial decision.In cases involving new judicial precedent, the CA said “a court is to apply the law in effect at the time it renders its decision.”Commonwealth v. Alexander, 5 S.W.3d 104, 106 (Ky. 1999).Pennington did not affect mother’s substantive rights; it merely clarified statutory procedure for challenging a motion for relocation.Furthermore, no decision or event had occurred to which Pennington could have been applied retroactively.CA found that FC did not err in determining that Pennington was applicable.
Mother argued that the FC did not find give appropriate weight to GAL’s report.CA did not find that FC clearly erred when it found relocation was not in the best interest of the children.
Statute allowing judge to interview child regarding child’s wishes in custody proceedings is permissive rather than mandatory; FC therefore did not abuse its discretion in refusing to interview child.However, FC erred in not allowing child to testify without first conducting a hearing regarding child’s competency to testify, as all persons are qualified to testify and presumed competent to do so unless trial court make a specific finding of incompetency. If child is found to be competent, trial court may maintain control over interrogation and protect witnesses from harassment and undue embarrassment under KRE 611(a)(3).
Hallis v. Hallis, orders modifying child support and deviating from guidelines affirmed. Pro se litigant must demonstrate good faith effort to comply with CR 76.12, but brief in this case was not stricken.
Coleman v. Coleman, denial of motion to modify custody vacated and remanded where court refused to hear testimony of child.