There are no published family law opinions. The Court did accept discretionary review of Griffin v. Rice, to determine whether an adulterous spouse is barred from received his or her dower or curtesy rights. The Court of Appeals opinion is here.
Dad appealed CA’s reversal of TC order modifying parenting time without making specific findings, arguing to SC that written findings of fact are not required when TC rules upon a motion to modify visitation provisions of a prior decree, but even if they were required, Mom did not preserve the issue for appeal because she did not move TC for specific findings in accordance with CR 52.04.
FACTUAL AND PROCEDURAL BACKGROUND:
FC awarded Mom and Dad joint custody of children in divorce with no designation of primary residential parent, although effect of parenting time schedule was that Children primarily lived with Mom, a soldier in the Army. A year later, Mom received orders to relocate to Texas and filed a Motion to modify parenting time. After hearing, FC orally indicated that decree would be modified so that Children would live primarily with Dad with Mom having visitation. FC orally provided basis for this decision, specifically discussing factors from KRS 403.270 and several references to “best interests of the children.” Dad’s counsel agreed to submit written order reflecting the court’s decision; however, this Order, which was entered by FC, failed to provide any factual findings or application of KRS 403.270 or best interests of Child standard. Mom appealed FC’s Order to CA. CA reversed FC due to failure to reflect consideration of KRS 403.270 factors, but remanded for further proceedings with no further guidance to FC.
“Compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and [trial courts must] include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions.”
SC also held that a FC’s failure to make the required findings of fact allows CA to remand for findings, even where no motion for specific findings is made. SC provided that, because it was familiar with FC’s oral findings, the case would be remanded to FC for entry of a new order setting forth in writing FC’s findings of fact and conclusions of law, but FC could, for this purpose, rely upon its discussion from the bench at the conclusion of the evidentiary hearing. However, SC noted that it would not expect appellate courts to search video records or transcripts and again emphasized the need for FC/TC to issue written findings.
Mom appealed TC’s Order granting visitation to Paternal Grandmother (“Grandmother”) after Dad’s suicide.
FACTUAL AND PROCEDURAL BACKGROUND:
Mom and Dad had one Child in common; after Dad committed suicide, Grandmother filed a petition to establish grandparent visitation pursuant to KRS 405.021(1). Mom filed motion to dismiss petition, claiming it was not in Child’s best interests to have visitation with Grandmother and that KRS 405.021(3) was applicable and Grandmother failed to state a claim under that subsection. TC denied motion to dismiss. After hearing, FC ordered that it was in Child’s best interests to have visitation with Grandmother and that, after re-initiation of contact in therapy, Grandmother should ultimately have a full day visit every other week or one overnight every month, plus reasonable visitation during the holidays. Mom filed post-judgment motions challenging FC’s order, which were denied. Mom appealed.
Mom argued FC erred in failing to dismiss Mom’s petition, claiming that because Grandmother was seeking substantial and liberal visitation rights, she was seeking “noncustodial parental visitation rights” under KRS 405.021(3), which would require Grandmother to pay child support. As Grandmother had not paid for financial support of Child, Mom claimed she lacked standing to file the petition. CA disagreed, noting that Grandmother’s petition sought only grandparent visitation, which is provided by KRS 405.021(1).
“It is not the death of a parent that functions to trigger the imposition of visitation and child support pursuant to KRS 405.021(3) but the breadth of visitation sought by the grandparent. A grandparent is still a grandparent whether or not her child, as the parent of the grandchild, is deceased. A party must actually be pursuing and receive that visitation normally awarded to a noncustodial parent before it is ordered to pay child support.” CA noted that FC’s awarded visitation to Grandmother was much less than would be typically given to a non-custodial parent.
Mom next argued that Grandmother failed to establish by clear and convincing evidence that it was in Child’s best interests to have visitation with her. CA disagreed, finding that Grandmother’s evidence was sufficient for FC to conclude that Child had and would continue to benefit from relationship with her; though Mom expressed concern over Child’s potential contact with Grandmother’s ex-husband, CA noted that FC’s order did not provide for visitation with him and in fact provided that Child was not to have contact with him.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
Dad appealed CA’s denial of his writ of prohibition, which sought to prevent Mom’s relocation with Children.
FACTUAL AND PROCEDURAL BACKGROUND:
Mom and Dad divorced, agreeing to joint custody of their two minor children in 2008. In 2009, Mom moved FC for a change in parenting schedule based on her relocation to Louisiana, and FC granted the motion on August 12, 2010. On September 24, 2010, Dad moved CA for a writ of prohibition and for emergency relief under CR 76.36, claiming that FC was acting outside of its jurisdiction, but that even if it did have jurisdiction, there was not adequate remedy by appeal. CA denied writ, summarily dismissing the claim of lack of jurisdiction, but going into much greater detail regarding why Dad had failed to satisfy the adequate remedy by appeal requirement. Dad appealed to SC, arguing only that FC was acting outside it jurisdiction. He contended that Mom’s motion should have been construed as a motion to modify custody, not parenting time. Motions to modify custody require supporting affidavits before FC acquires jurisdiction over them; since there were no affidavits filed in support of Mom’s motion, Dad argued FC lacked jurisdiction to consider it.
Relying on Brockman v. Craig, Dad argued to CA that whenever there is a joint custody arrangement that is silent as to designation of primary residential custodian (“PRC”), any attempt by one parent to relocate would amount to an attempt to acquire, and therefore, change the PRC designation, and this, in turn, is a modification of custody. SC noted that CA in Brockman relied on the holding in Crossfield v. Crossfield that a change in PRC was a modification of custody, but that the Crossfield holding is overruled by Pennington v. Marcum. Per Pennington, a parent seeking to become PRC in a joint custody arrangement is seeking a modification of timesharing, not custody, as a designation of PRC does not alter the decision-making authority of joint custody. As Mom’s motion sought only to change time-sharing, it was not a modification of custody, and she needed not have provided FC with supporting affidavits in order for FC to acquire jurisdiction over the motion.
Issue: Modification of foreign child support orders
Mom appealed FC’s Order dismissing her motion to modify a child support order originally entered in Florida. FC dismissed the motion, holding that, although the court may have personal jurisdiction over Dad, it did not have subject matter jurisdiction over a proceeding to modify the order.
FACTUAL AND PROCEDURAL BACKGROUND:
Paternity judgment entered in FL in December 2006. Mom moved to KY in 2007, and in April 2008, filed a Notice and Affidavit of Foreign Judgment Registration of FL paternity judgment in Fayette FC, followed by a petition and motion to modify the child support. At hearing, Dad argued by special appearance that he was not a KY resident, had not been served in KY, and that none of the criteria in KRS 407.5201 were met and, therefore, FC did not have jurisdiction. FC ultimately dismissed that action, finding that it did not have personal jurisdiction over Dad. After Dad appealed this decision, CA affirmed FC, noting in its decision that “any increase in child support requested by the obligee must be sought in the state of residence of the obligor.” Mom filed a new motion to modify the child support order in KY in 2010. Dad, who was in KY to spend time with the child, was personally served at that time. FC dismissed the new motion to modify the child support order, observing that, while under KRS 407.5201(1) a court may exercise personal jurisdiction over a nonresident who has been personally served in this state, it must also have subject-matter jurisdiction under the requirements of KRS 407.5611 before it can modify a child support order from another state; that, according to KRS 407.5611, a requirement for subject-matter jurisdiction to modify a foreign child support order is that the party seeking modification must not reside in this state; and as Mom resided in KY, KY does not have subject-matter jurisdiction to modify FL child support order. Mom unsuccessfully argued that the Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) preempted the subject-matter jurisdiction requirements of UIFSA and allowed FC to modify the child support order. Mom appealed.
CA held that even though personal jurisdiction was acquired over Dad in July 2010, the foreign order was not effectively registered in order to confer subject-matter jurisdiction. When Dad was served, no registered order existed because the 2008 registration occurred when KY did not have personal jurisdiction over him. According to FFCCSOA, registration of the parties’ Florida support order would only have been effective in Kentucky if Kentucky had personal jurisdiction over Dad at the time of registration.
Further, FC did not have subject-matter jurisdiction under state law. Under Kentucky’s UIFSA statutes, the family court would only have had subject-matter jurisdiction if Roberts had been a nonresident of Kentucky when she filed her motion to modify.
Since a court must have both personal and subject-matter jurisdiction to address modification of another state’s child support orders, and FC did not have subject-matter jurisdiction, it had to dismiss Mom’s motion. CA noted that personal jurisdiction is something the court may exercise whereas subject-matter jurisdiction is mandatory. Lastly, as CA found no contradiction between Kentucky’s UIFSA provisions and FFCCSOA, it made no determination regarding whether FFCCSOA preempts Kentucky UIFSA statute.
Ex-Husband appealed FC’s reissuance of DVO, arguing evidence was insufficient to support its continuation.
KRS 403.750(2) authorizes the reissuance of a DVO and grants courts the authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. While some showing of a continued need for the DVO must be presented to the court, additional acts of domestic violence need not be proven.
In FC’s re-issuance of the DVO, FC noted that it had had numerous opportunities since initial issuance of DVO, 8 years prior, to hear the parties testify, to observe them, and to assess their credibility; that the parties had a long history of domestic conflict including domestic violence and that emotions had run high during their numerous court appearances; that two DVOs had been issued against Ex-Husband and he had previously been held in contempt of court for violating a DVO, which he had violated as recently as April 2010 by sending Ex-Wife an angry email; and that Ex-Husband was upset over CPS investigations and may have felt additional stress as a result of a pending custody proceeding. Additionally, FC observed that the fact that the parties have a minor child creates situations in which the parties will inevitably cross paths before the child turns 18. On this basis, FC found that domestic violence had occurred and may occur in the future; that Ex-Wife had a reasonable fear of imminent physical harm from Ex-Husband; that the DVO had been effective in preventing domestic violence in the past; and that a continued need for the DVO existed. Accordingly, FC reissued the DVO for three more years.
CA found that sufficient evidence warranted a finding that the circumstances called for the continuance of the DVO because acts of domestic violence and abuse had occurred and may again occur. CA noted that while due consideration was given to the potential consequences resulting from the issuance of a DVO, FC did not err by reissuing the DVO against Ex-Husband.
Cabinet filed dependency, neglect and abuse petition against Mom alleging Mom had educationally neglected Child as Child had been tardy 16 times and absent 30 times in one school year, though Child had all B’s and C’s for that school year. Mom provided care for her elderly parents and said care interfered with her ability to get Child to school, but Mom testified that she helped Child with homework. Although TC did not find Child suffered actual harm from Mom’s actions, TC nonetheless found Mom had neglected Child’s education and ordered that Mom would pay $21.80 per day for each future unexcused absence. Mom appealed the finding of educational neglect, arguing that as there was no actual harm to Child, Commonwealth failed to meet its burden of proof. Commonwealth argued that there must only be a risk of harm to satisfy the statute. CA agreed, finding that Mom’s repeated inability to ensure Child attended school each day presented a threat of harm to Child’s welfare by denying Child the right to educational instruction.
Published: Affirming in Part, Reversing in Part, and Remanding
Issue: Extent of child support and arrearage to be paid by non-custodial parent whose only income is SSI.
The Cabinet for Health and Family Services moved the trial court to hold Ivy in contempt after she fell behind in child support payments. At the hearing, Ivy presented evidence that her sole source of income is SSI, which is inadequate to meet her own needs. The trial court reduced her child support, held her in contempt for failure to pay the past due amount, and ordered that future failure to pay would result in her incarceration. Ivy appealed and the Court of Appeals reversed, holding neither the contempt finding nor the order to pay could stand because Ivy does not have the ability to pay.
The Supreme Court granted the Cabinet’s motion for discretionary review to consider in what manner and to what extent SS recipients may be held accountable for child support.
In 2008, Ivy had been ordered to pay $106.00 for the support of her child, D.G. By virtue of assistance provided to D.G., the Cabinet became assignee for support due him and in February, 2009 brought its motion for contempt. At the show cause hearing, Kenneth Anderson, an attorney who serves as guardian and/or payee for SSI beneficiaries testified that Ivy is one of his clients and that after payment of Ivy’s rent and utilities, she receives less than $50.00 monthly.
The trial court reduced her child support to $60.00 per month and held her in contempt because she was an able-bodied person capable of providing financial support for her child.
The Court of Appeals held that the record did not support a finding of contempt or the imposition of a support obligation. Accordingly, the trial court had abused its discretion in finding her failure to pay contemptuous and ordering her to pay support and arrears she did not have the ability to pay.
The Supreme Court reversed the Court of Appeals’ decision to the extent that it suggests that a SSI recipient-parent’s present inability to pay precludes even the assessment of child support, but vacated the existing order and remanded for the family court to determine if the guidelines-based amount would be unjust or inappropriate pursuant to KRS 403.211(2).
The Supreme Court affirmed the Court of Appeals holding that a contempt finding was inappropriate where there was insufficient evidence that Ivy’s failure to provide child support stemmed from any reason but her inability to do so.