Larry Willis appealed from the November 30, 2010 order of Boyle Family Court modifying a Qualified Domestic Relations Order entered July 16, 2009.
The parties were married in 1992 and Ruby filed a petition to dissolve the marriage in March 2007. The parties participated in mediation in July, 2007 and reached an agreement which Larry reluctantly signed. On August 22, 2007, Ruby returned to the marital residence to retrieve personal items and furniture, and violence ensued. Larry shot Ruby twice and inflicted a massive head injury by kicking her. She is now permanently disabled and guardians and conservators have been appointed to care for her needs. Larry was convicted of criminal charges in connection with the attack and received five to ten year sentences, to be served concurrently.
On December 22, 2008, the family court entered the final decree of dissolution incorporating the property settlement agreement. Ruby received all the marital property and $91,000.00 from the nonmarital portion of Larry’s retirement as an offset. In July, 2009, Ruby filed a motion to enter a tendered Qualified Domestic Relations Order, awarding $91,000.00 to Ruby and the balance in the amount of $201,536.05 to Larry.
In October, 2010, Ruby moved the family court to modify the QDRO. Because the QDRO referenced the amount in the retirement accounts at the time of the marriage as Larry’s nonmarital property, before large market losses occurred, Ruby requested the family court to amend the QDRO to reflect that his nonmarital portion be reduced by the same market loss as her marital portion.
The family court conducted a hearing and directed both parties to submit proposed findings of fact and conclusions of law. The court entered Ruby’s version and ordered a modification of the QDRO, subtracting $145,699.83 from Larry’s nonmarital portion and awarding the funds to Ruby.
On appeal, Larry argued that the family court abused its discretion in reassigning his nonmarital property to Ruby, that the parties entered into a valid separation agreement, that the family court did not have jurisdiction to modify the QDRO, and that Ruby failed to appeal from either the decree or the original QDRO.
The Court of Appeals agreed with Larry that the family court violated KRS 403.190 in reassigning his nonmarital property to Ruby, that the parties entered into a valid separation agreement, and that family court did not have jurisdiction to modify the QDRO fifteen months after its entry.
Therefore, the Court of Appeals held that the Boyle Family Court abused its discretion in modifying the QDRO and reassigning a portion of Larry’s nonmarital property to Ruby and the family court’s order entered November 30, 2010 is reversed.
Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.
Published: Opinion Affirming in Part, Reversing in Part and Remanding
This opinion addresses the combined appeal and cross-appeal from Shelby Family Court orders modifying the division of Richard’s military retired pay between Richard and his former spouse, Kathy.
There are three issues. First, did the family court abuse its discretion in utilizing CR 60.02(f) to reopen the order dividing the parties’ marital property? Second, did the family court abuse its discretion in modifying the language in a previous order concerning division of Richard’s military retired pay? Third, did the family court abuse its discretion by granting Kathy’s CR 59.05 motion by adding language to the order which designated Richard’s disability benefits as marital property and then dividing it between the parties? As to the first two questions, the Court of Appeals found no abuse of discretion, but found that the family court did abuse its discretion as to the last issue.
On June 18, 1997, the family court entered a limited decree dissolving the parties’ twenty-five year marriage, reserving judgment on property issues, which were referred to the Shelby County Domestic Relations Commissioner. The DRC submitted Findings of Fact, Conclusions of Law and Recommendations on May 21, 1998.
Richard earned the right to military retired pay based on thirty years of service and the DRC found that 21 years and 9 months of service accumulated during the marriage and was marital property to be divided equally between the parties. Both parties filed exceptions, which the family court overruled on September 28, 1999. Thereafter, the court conducted a hearing on supplemental exceptions. On November 6, 2000, the court entered an order resolving all outstanding issues including a provision that Kathy receive 50% of Richard’s pension.
Kathy submitted Form 2293 to the Defense Financial & Accounting Service (DFAS), an “Application for Former Spousal Payment of Retired Pay” requesting 50% of Richard’s disposable retired pay per month. Kathy’s completion of the form as she did disregarded the distinction between marital and nonmarital portions of Richard’s military retired pay. As a result, she received 50% of the retired pay Richard earned while not married to Kathy, a benefit to which she was not entitled.
At retirement, Richard was entitled to $4400.00 per month, so based on the form Kathy submitted, they each began to receive $2200.00. Richard sought military disability benefits and the VA determined he was 40% disabled and entitled to receive $568.00 per month. Federal regulations require offset of military retired benefits by disability benefits so Richard’s non-disability military retired pay was reduced from $4400.00 to $3832.00, divided equally between Kathy and Richard.
In July, 1970 Richard filed a motion requesting family court to direct that Kathy only receive 50% of the portion of his disposable military retired pay attributable to the marriage, and on November 17, 2008 the family court so ordered. On November 26, 2008 Kathy filed a motion pursuant to CR 59.05 to alter, amend, or vacate the November 17, 2008 order on the grounds that the family court improperly modified the 1999 Property Order with respect to division of Richard’s military retired pay. She also filed a motion requesting a new trial under CR 59.01 and a motion for additional findings under CR 52.02. Her CR 59 motion asked the family court to amend its November 17, 2008 order to require DFAS to take Richard’s disability income into account when dividing his military retired pay.
An abuse of discretion standard of review is applied to a family court’s rulings on CR 59.05 and CR 60.02 motions. The test for abuse of discretion is whether the judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Although the family court did not specify under which rule it was modifying the 1999 Property Order, the Court of Appeals treated Richard’s motion and the family court’s corresponding order as brought pursuant to CR 60.02. Because information provided to DFAS was incomplete, DFAS paid Kathy a greater proportion of Richard’s military retired pay than that to which she was entitled. The Court of Appeals found that DFAS’s misinterpretation of the 1999 Property Order was a sufficient basis for granting CR 60.02(f) relief to allow the family court to adjust the order’s language to meet DFAS ‘s specific requirements. The Court of Appeals also found no abuse of discretion when the family court modified the language of the 1999 Property Order pursuant to CR 60.02(f).
The Court of Appeals next considered the family court’s granting Kathy’s CR 59.05 motion and adding language directing DFAS to take into account Richard’s disability pay when dividing his military retired pay. Because a retiree’s disposable retired pay is lower when he receives disability payments, the retiree’s former spouse’s portion of the retiree’s retired pay is also reduced. The Court of Appeals acknowledged the potential inequities which may result when a retiree elects to receive disability payments, but noted that both federal and state law prohibits treatment of a retiree’s disability payments as marital property. The family court’s order erroneously converted Richard’s disability benefits from nonmarital property into marital property in violation of federal law. Further, the Court of Appeals stated that while a CR 59.05 motion may be used to challenge a CR 60.02(f) order, it may not be used to collaterally attack the original judgment.
The Shelby Family Court did not abuse its discretion in reopening and modifying the 1999 Property Order pursuant to CR 60.02(f) but it did abuse its discretion by requiring DFAS to consider Richard’s disability payments in dividing his military retired pay. Accordingly this matter was affirmed in part, reversed in part, and remanded for additional proceedings consistent with this opinion.
Jessica Gossett appealed an order entered by the Hopkins Family Court naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica and Kenneth Gossett and awarding custody to the Kelleys. The appeal was based on matters of venue and adequacy of evidence, but the Court of Appeals was required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction.
The Gossetts were divorced by a decree entered in Christian Family Court on January 11, 2011. Jessica was awarded sole custody. Ten days later, the Kelleys filed a petition for custody of the minor child claiming standing as de facto custodians and asserting that the Gossetts had waived their superior right to custody. No affidavits were attached to their petition.
On February 21, 2011, there was a venue hearing in Hopkins County, and another hearing in that court on the standing issue on April 27, 2011. Jessica’s venue challenge was rejected and the family court ruled the Kelleys had standing and they were awarded custody.
The Court of Appeals began its analysis by considering subject matter jurisdiction. The Kelleys were aware of the proceedings in Christian Family Court and could have sought standing as de facto custodians, but they did not participate in that action. Sole custody was awarded to Jessica.
Once the Christian Family Court order was entered, any subsequent action affecting custody was a modification. The Kelleys and the Hopkins Family Court relied on KRS 403.270 for subject matter jurisdiction, but only KRS 403.340 provides the court SMJ to modify custody decrees. A motion to modify custody must be accompanied by the requisite affidavit or affidavits. No affidavits were submitted and therefore the Hopkins Family Court never had SMJ. The affidavit(s) must support a change of circumstances of the child or his custodian and modification must serve the best interests of the child. In addition to the failure to file supporting affidavits, the Hopkins Family Court order makes it clear there was no change in circumstances.
Because the Hopkins Family Court lacked subject matter jurisdiction to modify the final custody decree entered in Christian Family Court, the order granting the Kelleys de facto custodian status and awarding them custody is vacated.
The parties divorced in 1990, ending a 24-year marriage. Their agreement provided the wife $3000.00 per month in maintenance which was subject to modification if she became more employable as a result of education she received from husband’s financial assistance. In October, 2008 husband filed a motion to modify maintenance after wife received a bachelor’s degree in social work from the University of Kentucky. In June, 2009, wife filed a motion for attorney fees, expert fees, and costs incurred to defend the motion for modification.
On June 22, 2009, family court heard testimony on both motions, and on June 30, 2009 entered an order finding insufficient grounds for modification of maintenance. The order did not mention wife’s motion for fees and costs. On July 1, 2009, wife’s attorney emailed the judge’s clerk regarding the fees and on August 13, 2009 the judge’s secretary informed husband’s attorney that wife was going to file an affidavit concerning fees and that husband would have one week to respond, after which there would be a hearing.
At the hearing on September 4, 2009 husband objected on the grounds that family court no longer had jurisdiction over wife’s motion. On September 16, 2009 the trial court granted wife’s motion and awarded $19,161.80 in attorney fees and held that husband’s objection was without merit.
Husband appealed to Court of Appeals, which held family court lacked jurisdiction to grant wife’s motion and reversed award of attorney fees. Wife then appealed from Court of Appeals’ decision and discretionary review was granted.
Husband contended that trial court’s granting of fees to wife was an amendment to its decision denying his motion to modify maintenance. Since wife’s motion was not granted within 10 days following denial of husband’s motion, he asserted that CR 52.02 divested family court of jurisdiction. The Supreme Court disagreed, however, finding that CR 52.02 applied only to the amendment of judgments. The ten day time limit would apply only if the order denying husband’s motion to modify was a final judgment.
The finality of a judgment depends upon whether a case involves a single claim or multiple claims. If the case involves a single claim, all rights of all parties must be adjudicated in order to be final. CR 54.01. Multiple claims involve the application of CR 54.02(1) which states a final judgment may be granted on less than all claims only if it is determined there is no just cause for delay. Absent such determination, the decision is interlocutory and subject to revision at any time before entry of judgment adjudicating all claims.
The Supreme Court found that wife’s motion for attorney fees was a separate motion by a party opposed to the initial action, and more akin to a counterclaim. Different facts supported each motion in that husband relied on wife’s attainment of a bachelor’s degree and the basis for wife’s claim was the financial disparity of the parties.
Holding that the motions of each party constituted separate claims for the purposes of CR 54.02, the Supreme Court reversed the opinion of the Court of Appeals and remanded to that court for consideration of the merits of husband’s appeal of the trial court’s order awarding attorney fees to wife.
A.C. appeals from an order of the Kenton Family Court terminating her parental rights with regard to her minor son, M.W.C. The Court of Appeals is called upon to determine if it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493(1967) to appeals from orders terminating parental rights and, if so, whether the appeal herein is frivolous.
In January, 2009, the Cabinet filed a petition in Kenton Family Court claiming A.C. abused M.W.C. through excessive discipline. The Family Court committed M.W.C. to the Cabinet’s custody and adjudicated M.W.C. a dependent child. In March, 2010, the Cabinet filed its petition for involuntary termination of A.C.’s parental rights, which was tried in December, 2010.
A licensed clinical social worker testified about the abusive discipline, including the use of a stun gun. A.C. also failed to provide needed therapy and mediation. A social worker for the Cabinet testified that A.C. was resistant to services, refused to complete parenting classes, failed to complete a psychological examination and did not attend Alcoholics Anonymous meetings. The social worker reported that since admission to the Diocesian Catholic Children’s Home, M.W.C.’s disruptive behavior decreased and his grades improved, and concluded M.W.C. is happier and is likely to be adopted.
In January 2011, the family court entered comprehensive findings of fact and conclusions of law, and an order terminating A.C.’s parental rights as to M.W.C. M.W.C. was committed to the Cabinet’s custody and the Cabinet was vested with authority to place M.W.C. for adoption.
A.C. filed a timely appeal and her court-appointed counsel filed an appellate brief stating she was unable to find any meritorious assignment of error to raise on A.C.’s behalf and requested this court to independently review the record in accordance with Anders to preserve A.C.’s right to fundamental fairness. Thereafter, A.C.’s counsel filed a motion to withdraw, pursuant to Anders, which was granted. A.C. was given additional time to retain new counsel and/or file a supplemental brief, but she has not done so.
After expiration of the allotted time, the Cabinet filed a Motion to Dismiss and a Motion to Advance, claiming A.C. failed to provide any claims of error and no party raised an issue necessitating merit review. No “case or controversy” exists, justifying dismissal of A.C.’s appeal. On December 9, 2011, the Cabinet renewed its Motion to Dismiss. All matters are now ripe for review.
The question presented is whether Kentucky will apply the principles and procedures of Anders to appeals from orders terminating parental rights. In Anders, The United States Supreme Court addressed the duty of the court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after he has determined that there is no merit to the indigent’s appeal. The Supreme Court established Anders procedures or an Anders brief to safeguard a criminal appellant’s constitutional right to counsel when his court-appointed attorney wants to withdraw from a claimed no-merit appeal.
The Supreme Court said if the court-appointed counsel believes the indigent’s case is entirely frivolous, he should advise the court and ask to withdraw. The request should be accompanied by a brief referring to anything in the record that might support the appeal. After the indigent has the opportunity to review the brief and raise any points he chooses, the court will decide whether the case is wholly frivolous. If it so finds, the court may allow counsel to withdraw and dismiss insofar as federal requirements are concerned or decide on the merits, if state law requires. If, however, it finds any legal points arguable on their merits, the indigent must be offered assistance of counsel to argue the appeal.
When the attorney believes there are no non-frivolous grounds for appealing a termination of parental rights, the Anders procedures may be applied, providing balancing of the rights of the indigent parents and the obligations of their appointed attorneys. Just as the US Supreme Court provided Anders safeguards in the criminal context, our Court of Appeals provides indigent parents the right to appellate counsel in termination of rights cases.
The Court of Appeals provides a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. The Anders brief is not a substitution for an advocate’s brief on the merits, nor is it an escape provision to end undercompensated legal services the lawyer agreed to provide.
Having articulated the standard to be applied, the Court of Appeals reviewed the records and agreed with counsel’s assessment and saw no basis warranting relief on appeal. The Cabinet’s Motion to Dismiss and to Advance is moot and the Kenton Family Court’s order terminating A.C.’s parental rights to M.W.C. is affirmed.