Divorce Law Journal

Snodgrass v. Snodgrass, Ky COA, CR60.02(f), Military Retired Pay

Snodgrass v. Snodgrass, __ S.W.3d __ (Ky. App. 2009)

 

 In divorce proceedings, the parties agreed on all issues, except for the division of husband’s military retirement.  Husband served in the military for approximately 4 years prior to the parties’ approximate 14 year marriage.  A hearing was held before a Domestic Relations Commissioner on the division of retirement benefits; however, there is no proof in the record that husband actually received notice of it, waived his right to participate in it, waived his right to have the hearing recorded, or waived any other right or protection on account of his military service.  Husband was deployed overseas during the proceedings and unrepresented by counsel.  The trial court adopted the DRC’s recommendations and awarded the wife 46% of husband’s retirement.  No further activity took place on this matter for over six years.  Eight months prior to husband’s retirement, the wife submitted a form to DFAS requesting 46% of husband’s disposable retired pay, with no distinction between marital and nonmarital portions.  This translated to wife receiving 82% of the marital portion of the benefit and husband receiving 18%.  It was not until his retirement that husband realized something was wrong.  He hired counsel and filed a motion for relief pursuant to CR 60.02(f).  Due to several procedural and substantive delays, husband’s motion was not heard for another year and a half.  The trial court denied his motion, except it did prohibit the wife from receiving any portion of the benefit attributable to husband’s post-divorce increases in rank and pay.  Husband appealed.

    There are three factors that must be met in order to obtain relief under CR 60.02(f):  1) none of the provisions of CR 60.02 (a)-(e) apply, 2) whether the moving party had a fair opportunity to present his claim at the trial on the merits, and 3) whether the granting of relief would be inequitable to other parties.  COA found all three factors weighed in husband’s favor: 1) No evidence supports the applicability of CR 60.02 (a)-(e), 2) Husband lacked the opportunity to be present at the hearing, and 3) Granting relief would not be inequitable to wife because the court had already held that she is only entitled to a share of the marital portion of the retirement benefit and husband did not seek more than that.

    The decree that originally awarded wife 46% of the retirement benefits contained no distinction between marital and nonmarital property.  Therefore, the decree conflicted with the court’s order denying CR 60.02 (f) relief, which states that wife is only entitled to a share of the marital portion of the benefits, and must be corrected.  The decree is also problematic since it did not explicitly first assign each spouse their nonmarital property before dividing the marital property.  As a result, it is unclear what the decree intended the outcome to be for the division of military retirement benefits.  The COA came up with four different possibilities, and narrowed it down to two using logic and the law: 1) the trial court intended to award wife 46% of the marital portion and 0% of the nonmarital portion, or 2) the trial court intended to award wife 46% of the benefit earned up to the point of divorce, but not what husband earned after the divorce.  The COA remanded for the trial court to determine how the decree should be corrected and/or clarified.  The COA referred the trial court to DFAS’s pamphlet entitled Uniformed Services Former Spouses’ Protection Act, Dividing Military Retired Pay for guidance and recommended language.  When dealing with the division of military retired pay of an as-yet-ineligible service member, COA found the language in section IV.c. of the pamphlet regarding “hypothetical awards” to be consistent with Kentucky law. 

Next, COA noted that although husband chose to proceed unrepresented by counsel, he was still protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940.  Thus, even when a service member does not ask for a stay in the proceedings, the Act requires that the trial court determine that the military service of the party would not have a material, adverse effect upon his rights before going forward.                    

Finally, COA did not find error in the fact that husband had not appealed the decree or that he waited years to file a CR 60.02 motion.  The decree on its face seemed to accomplish what husband wanted and he only realized the error shortly before he retired.  Husband promptly acted upon finding the error. 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Mauldin v. Bearden, Ky. S. Ct., Child Custody, CR 60, Continuing Jurisdiction

Mauldin v. Bearden, ___S.W. 3d___ (Ky. 2009)

PUBLISHED: REVERSING
OPINION BY JUSTICE NOBLE; ABRAMSON, CUNNINGHAM, SCHRODER, AND VENTERS, JJ., CONCUR; MINTON, C.J., CONCURS IN RESULT ONLY
COUNTY:

JEFFERSON

Paternal Grandparents appealed from CA decision reversing Jefferson Family Court’s (FC’s) order denying Mom’s motion to set aside FC's judgment awarding permanent custody of Daughter to Paternal Grandparents and her motion for visitation, where FC found that it lacked jurisdiction to consider visitation. 

FACTS: 

At time of Daughter’s birth, Mom and Dad were alcoholics and physically abusive to each other.  Mom had been drunk more than once during her pregnancy and while breastfeeding.  She had also been arrested for PI and DUI during her pregnancy.  Paternal Grandparents filed a petition for temporary and permanent custody and an ex parte emergency motion for temporary custody of Daughter four days after birth of Daughter.  Maternal Grandparents supported the motion, providing an Affidavit regarding both Mom’s and Dad’s unfitness to parent.  FC entered temporary custody order that day and referred the matter to CFC for investigation.    Daughter was immediately taken to Alabama to live with Paternal Grandparents.  CFC subsequently filed DNA action a few days later, which was transferred to same division as custody action consistent with principle of “one family, one judge,” which underlies Family Court, though the actions had and continued to have separate case names and numbers.  The following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. FC reaffirmed its award of temporary custody to Paternal Grandparents.  At a subsequent hearing, Mom and Dad were ordered to participate in a course of rehabilitative treatment and testing and were allowed supervised visitation, though neither ever exercised that right.  Neither Mom nor Dad filed a responsive pleading during this time.

Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed   a response. FC entered a default judgment granting Paternal Grandparents permanent custody.  The supervised visitation order from the DNA proceeding remained in effect, but as CFC was taking no further action, there was no termination of parental rights that would have prevented the ordered visitation.  Mom and Dad were still living together.  Paternal Grandparents then initiated proceedings in Alabama, then the home state of Daughter, to formally adopt Daughter. Daughter had then been living there for nearly a year. Alabama entered temporary decree granting custody to Paternal Grandparents and set a dispositional hearing.  Mom participated in the Alabama proceeding through counsel.  She then filed a motion with Jefferson Family Court (FC) under case numbers for both custody and DNA actions, but noticed only for DNA docket, asking for custody of Daughter.  FC denied her motion as improper on DNA docket.

Mom then filed a motion to set aside the default judgment entered against her and to set a custody hearing, pursuant to CR 60.02(d) and (f). In support of her motion, Mom did not provide a Memorandum but filed affidavits signed by herself, Dad and Maternal Grandparents. Mom's affidavit stated that she believed Dad and Paternal Grandparents had conspired with Dad to prevent her participation; that Dad’s threats of abuse and her lack of access to vehicle or phone prevented her from participating in the permanent custody hearing; and that she otherwise would have defended herself, though she did not provide the basis for her defense.  Dad corroborated the abuse and conspiracy.  Maternal Grandparents stated that Mom was now capable of having custody of Daughter.   

After reviewing rebuttal affidavits and hearing the arguments of counsel, FC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents or collusion occurring between Dad and Paternal Grandparents and that Paternal Grandparents had done nothing wrong in their pursuit of custody of Daughter. FC noted that Mom and Dad stipulated in DNA proceeding that Daughter was at risk of neglect due to their alcohol abuse.  FC agreed that it had jurisdiction, but that that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02.  FC denied Mom's motion to alter, amend or vacate, declining to exercise jurisdiction and deferring the visitation issue to Alabama as the home state of the child.  Mom appealed.  CA reversed, vacated and remanded, holding that affidavits submitted by Mom alleged facts that, if true, demonstrated fraud justifying vacation of the judgment, and that FC should hold a full evidentiary hearing with testimony.  CA also found that Kentuckyhad continuing jurisdiction under KRS 403.824, but did not address the fact that FC expressly declined jurisdiction. 

Questions:

Did FC properly deny Mom’s CR 60.02 motion without conducting full evidentiary hearing on fraud allegations?

Does FC have continuing exclusive jurisdiction such that it must make decisions regarding visitation? 

Analysis:

CR 60.02:

SC found that given what FC judge had from affidavits, record, and what he knew from case, he had sufficient information to determine facts and judge credibility of parties without taking further testimony.  FC was well within its discretion to take allegations on their face, and determine if further proof was necessary, as specificity of fraud allegations would be fleshed out by further testimony but not fundamentally changed.  FC judge had already had numerous contacts with parties to judge credibility of the affidavits.  Also, as a policy matter, FC’s decision spared family further turmoil from redundant testimony.

SC further found that Mom did not have nor did she allege defense at time of default judgment, as required by CR 60.02, and that although abuse and addiction are factors that are proper for a court to consider, neither standing alone equate to “facts of an extraordinary nature” required to be present under CR 60.02.  

Continuing Jurisdiction:

SC found that FC did have jurisdiction over actions concerning Daughter because she was born in Kentucky

and had resided here the entire eight days of her life when action was filed. 

SC nonetheless noted several procedural errors.  Paternal Grandparents filed Petition for custody under KRS 403.828, 403.270, and 405.020.  However, none of those statutes were applicable to Paternal Grandparents at that time. KRS 403.270 and KRS 405.020 applied to parents and/or de facto custodians and, since Paternal Grandparents had not had physical custody of nor provided financial support for Daughter for previous 6 months, they were not de facto custodians.  KRS 403.828 grants emergency jurisdiction to Kentucky when a child is brought in from another state that has jurisdiction over the child but is not exercising it.  As Daughter was resident of Kentucky at the time, this statute did not apply. 

SC noted that Paternal Grandparents could have filed a DNA petition under KRS 620.070 and FC could have issued emergency custody order to Paternal Grandparents under KRS 620.060, but that this order would only have been effective for 72 hours and that temporary removal hearing with full notice to both parents would have had to be held during that time.  That did not occur in this case.  Only when FC “renewed” its temporary custody order and ordered supervised visitation for Mom and Dad in the DNA docket did Paternal Grandparents have full legal custody.  FC should not have refused to hear Mom’s motion to modify custody orders just because Mom filed in the DNA action rather than the KRS 403 action.  SC opined that “it makes little sense… to continue to treat this subject matter as separate actions, if the purpose of the family court system is ‘one family, one judge,’” and that, “one a legitimate party properly invokes the court’s jurisdiction…continued compartmentalization of the proceedings—before the same judge—works only to disadvantage some litigants without a sound reason for doing so.”  SC nonetheless found that these problems did not affect the ultimate outcome, for when Kentucky declined to exercise jurisdiction and deferred to Alabama, proper UCCJEA provisions were followed regarding custody and visitation.  Moreover, UCCJEA does not apply to adoption proceedings and FC could make no ruling affecting Alabama

adoption proceeding.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Lawson v. Lawson, Ky COA, Marital Settlement Agreement, CR 60.02 Corrected)

Oops! Wife received $24 million in the settlement. What's another $20M?

 

 Lawson v. Lawson, ___S.W.3d __ (Ky.App. 2009); 2008-CA-000824-MR

 The parties divorced in 2006.  The wife sought and received an expedited divorce without conducting discovery into the extent of the marital estate.  In the settlement agreement, wife received approximately 4 million dollars of assets and immediately began accepting the benefits of same following the divorce.  Eleven months later, wife filed a CR 60.02 motion challenging the separation agreement based on claims of intimidation, overreaching and/or mental incompetence.  The trial court denied her motion for three reasons:  1) the claims of intimidation, overreaching and/or mental incompetence were unsupported, 2) even if her claims were true, she ratified the agreement by continuing to pursue the benefits of it, and 3) the CR 60.02 motion was not brought within a reasonable amount of time.  Wife appealed.

The COA affirmed.  The trial court did not abuse its discretion in finding that her claims were unsupported or that the motion was not brought within a reasonable time period.  Wife had testified to the trial court that the agreement was fair, the record showed that the parties had negotiated the terms of the agreement, and her attorney had written the wife letters, which wife had signed as well, explaining all the risks of signing an expedited settlement agreement.  The COA did not address whether wife had ratified the agreement by her actions. 

Senior Judge Harris, Concurring opinion:  The majority reached the right result.  However, had the CR 60.02 motion been timely presented, the trial court would have had to grant the wife an evidentiary hearing on her mental capacity claim and then render a specific finding of fact as to her mental capacity at the time she signed the agreement. 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Stipp v. Charles, Ky COA, Venue, Division Of Marital Property, Amount Of Maintenance

STIPP V. CHARLES

TO BE PUBLISHED:  AFFIRMED

PANEL:  ACREE PRESIDING; NICKELL AND KNOPF CONCUR

COUNTY: JEFFERSON
DATE RENDERED: 7/2/2009

 

Ex-Husband appealed TC’s order finding that he waived his objection to improper venue and dividing marital assets and awarding maintenance, claiming error.   

 

FACTS:

 

The parties separated after 20 years of marriage.  They had one teenage child.  At the time of separation, the parties resided in Oldham County near the Jefferson County line.  The most Ex-Husband earned in one year was about $35,000, while Ex-Wife was earning $235,000 at the time of separation in addition to receiving bonuses, stocks, and stock options.  Ex-Husband did not work and provided primary care for the parties’ son for a period of time. 

 

Ex-Wife filed for divorce in Jefferson County.  Subsequently, she filed a domestic violence petition in Oldham County and an emergency protection order was entered.  Ex-Husband filed his response to the divorce petition in Jefferson County, noting that neither party resided in Jefferson County and that the proper venue was Oldham County; but rather than objecting to the venue, stated that he “reserves the right to ask [the] court to transfer [the] case to the Oldham Circuit Court.”  He then filed his mandatory case disclosure in Jefferson County. 

A case management conference was scheduled by the Jefferson family court and mediation was also scheduled.  Both parties also filed other motions with the Jefferson court, as well as an Agreed Order dismissing the Oldham County domestic violence order.  Only after these filings did Ex-Husband then file a motion requesting a transfer of the case from Jefferson County to Oldham County on grounds of improper venue. The Jefferson family court proceeded with the case management conference, finding the motion for transfer to be untimely and denied it on that basis.  After final hearing, the Jefferson family court awarded Ex-Wife 57% of the marital assets and 43% to Ex-Husband, awarded Ex-Husband maintenance of $2,000 per month for a period of six Years, and required Ex-Wife to continue providing health insurance coverage for Ex-Husband through COBRA for three years, which the court reduced to eighteen months in response to Ex-Wife’s motion to alter, amend or vacate, as this was the period of allowable coverage under Ex-Wife’s health insurance plan.

Ex-Husband then appealed.

 

ANALYSIS:

 

Venue.  At the time the case was filed, Oldham County was the proper venue. 

“Improper venue” is a defense, CR 12.02(c), which a party must assert, either in a responsive pleading or by motion, within 20 days after service

of the summons upon him/her.  If the defense is not so asserted, it is waived.   As Ex-Husband did not timely raise his objection under the Rules, he waived the objection. 

Furthermore, Ex-Husband availed himself of the Jefferson family court’s time and judicial resources by filing documents with the court and entry of Agreed Orders with that court.   Were the court to allow Ex-Husband’s “reservation” as an assertion of the improper venue defense beyond the time allotted by the Civil Rules, the court would enable a form of forum shopping, allowing a party to subjectively assess how the litigation is progressing before seeking a different venue. If Ex-Husband wanted the case transferred to another county after failing to object to improper venue in his responsive pleading, the legal basis of such a post-pleading motion was the doctrine of forum non conveniens. Even if Ex-Husband’s motion were viewed under this doctrine, the Jefferson family court did not err in denial of the motion, as it had already expended judicial resources in the case and the parties’ residence was far from inconvenient.

 

Distribution Of Marital Assets.  Ex-Husband also claims TC erred by failing to distribute the marital assets equally. CA found that, in determining the division, TC followed the statute and considered “all relevant factors,” including those listed in KRS 403.190(1)(a)-(d), and found no error. 

 

Award Of Maintenance.  Ex-Husband also contended TC abused its discretion by awarding him maintenance of only $2,000 per month for six years. He argued the

CA found that TC properly considered the nature of Ex-Wife’s financial resources, the standard of living established by the parties during the marriage, the duration of the marriage, and the ability of Ex-Husband to meet his own reasonable needs, and found no error.      

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

 

 

New Ky Civil Rules Re Subpoenas and Privacy Protections

The new CR 7.03 providing privacy protections and the new CR 45.01-45.05 are here. The revised subpoena form is here. All are effective April 1, 2009. These changes are very significant.

Hines v. Carpenter, Ky COA, Damages From Supersedeas Bond Pending Appeal Of Child Support

Hines v. Carpenter, _ S.W.3d _ (Ky. App. 2009), 2006-CA-002173-MR

The trial court entered a summary judgment in favor of Hines for back child support owed by Carpenter.  Carpenter appealed the judgment and posted a supersedeas bond to stay the collection of the judgment while the appeal was pending.  The Court of Appeals affirmed the summary judgment in favor of Hines.  Then a QDRO was entered by the trial court, requiring that Hines be paid 50% of Carpenter’s monthly benefit until the sum of $149,495.01 was paid in full, or the Appellants die, or Carpenter dies, whichever first occurs. Hines then filed a motion to compel Carpenter to pay a lump sum of $14,175 for damages allegedly incurred by the posting of the supersedeas bond.  The trial court denied the motion to compel.  This appeal followed.  
   The sum of $14,175 is equivalent to the 21 monthly payments that Hines would have received during the pendency of the appeal.  Hines argued the motion to compel should have been granted because interest on the uncollected judgment was accruing at more than twice the rate of the current monthly payments by the pension plan.  She also argued that the full judgment would never be recouped since Carpenter, who was sixty-two years old at the time the motion to compel was filed, would have to live another 18 years for them to receive just the principal amount of the judgment.  
KRS 26A.300(1) prohibits the collection of damages on a first appeal as a matter of right.  Carpenter’s appeal was his first on this issue.  Therefore, the relief Hines requested was statutorily forbidden.  
AFFIRMED

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Comment On Murphy v.Murphy

A thoughtful comment was posted to Murphy v.Murphy, digested here. As comments can be almost lost below the fold, I thought this one From Donald W. Aaron in Florence deserved posting in its entirety. I was in the courtroom for this case when the wife appeared pro se and requested that the judge vacate his custody order. I agree with the CA's statement of the importance of adequate notice of such a life-altering hearing. Earlier in my career, I had a judge ask me to serve an opposing party directly when no one showed for a post-decree hearing after I only served the prior attorney of record. Now we have an opinion affirming this as good practice. This opinion is also important in providing protection for attorneys, because "as a matter of law, conclusion of a divorce action terminated the attorney-client relationship." In the instant case the wife should not have filed an appeal while a "valid" motion to alter, amend or vacate was pending. If the CA found the motion tolled the time for appeal, and her appeal was vacated as premature, then any appeal filed after the first dismissal could have again been dismissed as untimely, the clock having run. Appeals have tricky trap doors, even for experienced trial counsel. Wife was pro se on appeal, as she was credited with an appellate brief.

Murphy v. Murphy, Ky COA, Modification Of Custody, Notice

Murphy v. Murphy, --S.W.3d – (Ky. App. 2008), 2007-CA-002298-ME

The parties shared joint custody and equal parenting time of their three children. More than a year after the parties’ last interaction with the court, the father moved to modify custody. He mailed the motion/notice to the mother’s attorney of record. The mother’s attorney of record then filed a Notice of Nonrepresentation, stating that she no longer represented the mother, but had mailed a copy of the motion to her last known address.

The court held the modification hearing without the mother, or any legal representative, present, since the mother had an attorney of record. The father even told the court that the mother’s current address was different than the one her attorney of record had mailed the motion to. The court saw no need to take any proof regarding the change of custody in the mother’s absence, and sustained the motion to grant the father sole custody of the children. The mother only learned of the hearing and order afterwards, when the father contacted her to pick up the children.

About a week after the hearing, the mother finally received the motion/notice that her attorney of record had sent. The next day, the mother filed a pro se motion to alter, amend or vacate the judgment, which the court denied. The parties subsequently entered an agreed order regarding parenting time, allowing the mother weekend and Wednesday night visitation. The mother then renewed her motion to alter, amend, or vacate and asked the court to appoint her a GAL. The court denied both motions. The mother appealed.

The mother’s first claim of error was the court failed to find that the father’s motion for change of custody warranted a hearing. The COA found that the father alleged sufficient grounds to justify a hearing.

The mother’s second claim of error was the court, knowing that notice was highly questionable, erroneously allowed the hearing to go forward without her presence. The COA reversed for lack of notice. Conclusion of the divorce action terminated the attorney-client relationship, therefore service of notice on the mother’s attorney of record did not effectuate service on the mother. In addition, once the attorney filed the Notice of Nonrepresentation, a new hearing date should have been set and service made directly on the mother.

The mother’s final claim of error was the court modified custody without finding a change in circumstances or best interests of the children as required by KRS 403.340(3). As there were no affidavits, no testimony, and no findings by the court, the COA reversed and remanded for a hearing and the statutorily required findings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A HEARING AND FINDINGS.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

BEARDEN V. MAULDIN, CHILD CUSTODY

BEARDEN V. MAULDIN
2007-CA-001888
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: BUCKINGHAM PRESIDING; LAMBERT AND MOORE CONCUR
COUNTY: JEFFERSON

Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.

FACTS:
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.

TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents.

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.

Analysis:
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.
Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.

MCKINNEY V. MCKINNEY, CHILD SUPPORT, FINDINGS OF FACT

MCKINNEY V. MCKINNEY
2006-CA-002132
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON PRESIDING; NICKELL, GRAVES CONCUR
COUNTY: JEFFERSON

Ex-Husband appealed from TC’s order imputing to him a monthly income of $8,000 for the purposes of establishing child support in accordance with the Kentucky Child Support Guidelines.

FACTS:
Ex-Husband and Ex-Wife entered into a Marital Settlement Agreement that explicitly reserved the issues of child support expenses. After hearing, TC entered an order finding that Ex-Husband earned income from part-time work as an attorney but primarily by “flipping” real estate, imputing income to Ex-Husband of $8,000 per month and ordering child support in accordance with the Kentucky Child Support Guidelines. However, TC did not parse out its calculation of Ex-Husband’s imputed $8,000 monthly income. Ex-Husband subsequently filed a CR 59 motion to alter, amend or vacate, as well as a motion pursuant to CR 52.02 requesting additional findings of fact regarding the imputation of $8,000 monthly income. TC denied the motion for additional findings and this appeal ensued.

ANALYSIS:
Ex-Husband argued that there was no evidence submitted to support TC’s imputation of $8,000 in monthly income and that, at a minimum, he was entitled to additional findings as to how TC arrived at the $8,000 figure. Ex-Wife responds that TC, in imputing income to both parties, opted to calculate child support based on the “potential income” of each party and that TC was not required to segregate Ex-Husband’s potential earnings as an attorney from those generated by the real estate. CA found that the standard of review for appellate courts in child support matters is abuse of discretion.

CR 52.01 provides that in all actions tried upon the facts without a jury, the trial court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment. Thus, the issue herein is whether the TC’s omitted finding involves a matter which was essential to TC's judgment. CA found that, other than generally stating that the imputed income was derived from Ex-Husband’s law practice, rental properties and capital gains, TC provided no explanation as to how it reached the $8,000 a month figure. Without adequate factual findings, CA held that TC's decision could not be meaningfully reviewed and that the omitted finding involved a matter which was essential to TC's judgment. Thus, TC erred by denying Ex-Husband’s motion for additional factual findings on this issue and the matter must be remanded for additional findings.

CA’S NOTE TO SC REQUESTING MODIFICATION OF RULES:
“In rendering the decision herein, we are cognizant of the fact that CR 52.01 specifically states that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41.02.” Although the instant appeal arises from “decisions of motions,” the issue of child support was initially raised in Ex-Wife’s petition for dissolution and was only resolved after an evidentiary hearing. Thus, we conclude that the crux of this appeal stems from an action “tried upon the facts without a jury[,]” as set forth in CR 52.01. However, we are also of the opinion that CR 52.01, as currently written, is not only overbroad but illogical. The majority of orders and judgments from TC originate from a motion. Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make -7- findings of fact when ruling on a motion of any kind except as provided in CR 41.022 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review. We would urge our Supreme Court and Rules Committee to review and revise CR 52.01.”
Reversed and remanded.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

One To Be Published Family Law COA Opinion June 13, 2008

McKinney v. McKinney, court imputed income to part-time attorney and real estate “flipper” but did not make finding he was voluntarily underemployed and did not set out more specific findings. Since findings are essential to this judgment, case was reversed for further findings. A digest will follow. There is no link to the case here because the links on the Court of Appeals website are broken again this week. I found the decision by going to this site, searching for "June 13, 2008" and then clincking 2007 CA 349.

Ky Supreme Court Oral Arguments January 16, 2008 In Thomas v. Thomas

Oral arguments in Thomas v. Thomas, digested here, will be held January 16, 2008 at 11:00 a.m. Kentucky Court Report has the links to the briefs and live cam here.

Pursley v. Pursley (KY) Custody Modification; Exceptions to Commissioner's Report

Pursley v. Pursley, —S.W.3d—, 2007 WL 4126464 (Ky. App. 2007).

Dad appealed Family Court’s order modifying joint custody of Daughter to sole custody with Mom, and restricting Dad’s visitation to weekly supervised visitation. Dad alleged that Circuit Court erred by treating the Exceptions he filed as a Motion to Alter, Amend or Vacate and by transferring the case to Family Court.

When Daughter was ten, Mom and Dad divorced and agreed upon joint custody with equal time sharing of Daughter. Two years later, Mom alleged that Dad had engage in inappropriate sexual relations with Daughter and moved for sole custody. The matter was heard by a Domestic Relations Commissioner (“DRC”), who recommended sole custody to Mom with weekly supervised visitation by Dad. Dad timely filed Exceptions to the DRC’s recommendations. Circuit Court entered an Order that it would treat the Exceptions as a Motion to Alter, Amend or Vacate pursuant to CR 59.05 DRC’s recommendation and transfer the case to Family Court. DRC had been elected as Family Court Judge, and in that capacity, he subsequently denied the Motion to Alter, Amend or Vacate. Dad appealed.

CA agreed with Dad. Regarding the Motion to Alter, Amend or Vacate, CA noted that a CR 59.05 motion may only be utilized to seek reconsideration of a “final judgment.” The recommended order of a DRC is not a final judgment, but, rather, a recommendation utilized by the circuit court in reaching a final decision, thus the Motion to Alter, Amend or Vacate was not available at that stage of the proceedings. Considering the procedural posture of this case, CA believed the circuit court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the child custody issue.

As to Dad’s contention that the case should not have been transferred to Family Court, CA noted that while the family court was vested with jurisdiction over domestic issues by Ky. Const., § 112(6) and KRS 23A.100, such jurisdiction was not intended to be exclusive. Rather, the circuit court may, in some circumstances, retain jurisdiction to rule on domestic issues already before it, such as child custody. CA found that this case presented a unique circumstance where the circuit court should have retained jurisdiction and not referred it to Family Court since DRC conducted the proceedings, including an evidentiary hearing pursuant to CR 53.

Mom argued that Dad did not preserve issues for appeal, but CA stated that the gravity of errors claimed was one of substantial proportions, and pursuant to CR 61.02 this error may be considered by CA and the appropriate relief may be granted upon a determination that manifest injustice resulted from the error. CA noted that such an injustice had occurred, because “in a child custody proceeding, there can be no greater injustice to a party than a court failing to comply with applicable statutes and civil rules.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Miller v. McGinty, Attorney Fees, Rules of Civil Procedure

Miller v. McGinty, ___S.W.3d___(Ky. App. 2007)

Ex-husband appealed order of TC requiring him, pursuant to KRS 403.220 and CR 37, to pay $8,500 of attorney fees to Ex-wife, claiming that TC failed to consider the financial resources of both parties as required by KRS 403.320 and that CR 37 and the holding of Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986) were inapplicable to the facts of his case.

When Ex-Wife initially filed her Petition for Dissolution, she was unaware of Ex-Husband’s address. She therefore attempted service through a Warning Order attorney. Darren resided in Utah, was a member of the Air National Guard, and unknown to Ex-Wife, was stationed in Iraq at the time she filed for divorce. The Warning Order Attorney filed his report and, subsequently, a default hearing was held, resulting in TC’s issuance of findings of fact, conclusions of law, and decree of divorce. Ex-Husband then filed a Motion to Alter, Amend or Vacate this Order on the basis that Ex-Husband had not been properly served. TC granted the motion, Ex-Wife served Ex-Husband through Secretary of State, and new trial was held. TC divided property and debts and ordered Husband to pay $8,500 of Ex-Wife’s attorney fees.

Ex-Husband first contended that TC failed to consider the financial resources of the parties before awarding attorney's fees to Ex-Wife. CA noted that although a trial court is not required to make specific findings on the parties' financial resources, TC must consider the financial resources of the parties before ordering an award of attorney’s fees. Further, KRS 403.220 requires a showing of an imbalance in the financial resources of the respective parties. In this case, TC expressly stated that no evidence was submitted concerning the parties' financial resources, requiring the court to make assumptions from evidence submitted regarding the financial circumstances at the time of the marriage as to the status of their financial resources at the time of trial, though the parties had been separated for over 3 years and divorced for 2 years. CA held that the financial situations of the parties during their marriage were too remote in time for the court to make such a finding based on this evidence, and TC abused its discretion in making award of attorney fees without first considering the parties' financial resources at the time that the court entered its order. CA vacated attorney fee award under KRS 403.220 and remanded issue to TC.

Ex-Husband next asserted that TC erred by basing the attorney fee award on the case law of Lampton and CR 37, as they are inapplicable to a party's failure to voluntarily submit to personal jurisdiction. CR 37, which is titled "Failure to Make Discovery; Sanctions," permits a court to award attorney's fees as a sanction against a party who fails to conduct discovery or abide by discovery rules. In Lampton, CA implied that an award of attorney's fees under CR 37 is appropriate if the award is motivated by the party's obstruction of and refusal to cooperate with discovery. In this case, TC provided that an award of attorney's fees under CR 37 was appropriate due to Ex-Husband’s irresponsibility with regard to the parties' financial matters. CA held that this reasoning had no connection to discovery proceedings in the case. Furthermore, Ex-Husband’s failure to submit to TC’s jurisdiction despite his knowledge of the case also held no connection to CR 37 nor merited an award of attorney fees under any rule or statute, as there is no requirement in Kentucky that a defendant submit to the court’s jurisdiction once he gains knowledge of the action. CA reversed any portion of the attorney fee award based on CR 37.

Ex-Husband also alleged that if TC had the authority to award attorney's fees in this case, the reasonableness of the fees awarded was improperly analyzed by TC. CA held this claim to be moot as it had vacated the award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Divorce Courts May Not Prohibit Oral Testimony

As family courts struggle with huge caseloads and as a movement to informalize procedure gains ground, Family Law Prof Blog has this to say about Elkins v. Superior Court (California Supreme Court, August 6, 2007)

The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual
circumstances.” The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules.

The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes." Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.

The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources. However, on balance, that did not justify the violation of basic trial procedures.

That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.”

Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

Failure To Plead Prenup Is Failure to Plead Affirmative Defense And Bars Court Consideration Of Agreement

A recent Missouri case holds that a party seeking to enforce a prenup must raise the issues in a pleading. Failure to do so prevents the court from enforcing the prenup. Homan v. Holman, which can be found here.

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances . . . . A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.[(FN3)]

"An affirmative defense is waived if the party raising it does not plead it." In re Estate of Kilbourn, 898 S.W.2d 583, 586 (Mo.App. 1995).

Based on the foregoing, we determine the trial court abused its discretion in permitting Husband to introduce the Agreement at trial because Husband failed to assert the Agreement as an affirmative defense in his pleadings. It has long been held that "[m]atters seeking avoidance of a valid contract are affirmative defenses and must be set out in the pleadings." Id. The terms of the Agreement clearly provide "'additional facts [other than the statutory considerations of section 452.300] that permit [Husband] to avoid the legal responsibility alleged'" by Wife, i.e., that there was marital property to be divided. Smith v. Thomas, 210 S.W.3d 241, 244 (Mo.App. 2006) (quoting Mobley v. Baker, 72 S.W.3d 251, 257-58 (Mo.App. 2002)). A party that fails to raise an affirmative defense in his pleadings, waives that issue at trial. In re Estate of Kilbourn, 898 S.W.2d at 586.

Taking depositions

This is a very long post, but I think even very experienced litigators will enjoy it. Most of it is below the fold so you can click "continue reading..." as you have time to take it in, or come back to it before you take your next deposition. Vicki Pynchon has been sharing tips for less experienced lawyers on Settle It Now Negotiation Blog. Of depositions she writes that they are a stimulating, character-building, multi-dimensional board game with real stakes. You never master it. That's the good of it. There's always a challenge. Her lessons from the school of hard knocks are insightful for all of us. While the series is not finished, there is just too much already available not to share. Her Funnel Technique is an easy road map for any depo.
Some quotes from Advice For Young Lawyers - On The Job Deposition Training:

You don't have to rephrase a question in response to an objection.

I did this dozens of times in a two-hour period. At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.

"Just wait for the answer," he whispered in my ear. "You don't need to re-phrase the question. If the witness doesn't answer, ask the court reporter to read it back. Say, "do you have the question in mind? Yes? Would you answer it please?'"

I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."

The court reporter doesn't really "strike" anything from the record.

This is someone else's painful story. I was defending a deposition that was obviously the examiner's first time. Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that."

Then he waited for her to do something. When she didn't, a confused look would cross his face and he'd return to his questioning. He must have done this a dozen times during the first hour.

Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"

After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."

There is no usual stipulation.

At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"

So that's what I did in my first deposition.

"The usual stipulations counsel?"

Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new

Discretionary Review Pending In Appeal From Confirmation Of Four Year Old DRC Report (KY)

Thomas v. Thomas, 2004 CA-001997-MR, designated not to be published, discretionary review granted.

Issue and Holding:
Whether the trial court erred in denying wife an evidentiary hearing and adopting the Domestic Relations Commissioner’s four year old recommended findings of fact and conclusions of law. The Court held no, either party could have requested that the DRC make written recommendations, and neither chose to do so.

Facts:
An interlocutory decree was entered in November 1999. A hearing was held on the remaining issues in April 2000. At the conclusion of the hearing the DRC made oral findings of fact on all issues. The wife’s attorney was to then put the DRC’s oral findings into written form. The DRC’s Recommended Findings of Fact and Conclusions of Law was not entered until June 2004. The wife then filed exceptions to the DRC’s recommendations, arguing that due to the DRC’s delay and subsequent changes in the parties’ circumstances that additional proof needed to be taken. The trial court heard the exceptions in August 2004, and then adopted the DRC’s recommendations in their entirety in September 2004. The wife appealed, arguing that the trial court should have allowed her to present evidence as to why enforcement of the DRC’s recommendations would be inequitable.

Analysis:
While the DRC failed to comply with KRS 454.350(2), both parties were aware of what the DRC’s recommendations were going to be. The DRC’s written recommendations were the same as his oral findings made four years earlier. Either party could have requested that the DRC make written recommendations, and neither chose to do so. Affirmed.

Huddleston, Senior Judge, Dissented.
The four year delay is unconscionable. The parties’ circumstances had obviously changed over that period of time. The trial court should have conducted a hearing to receive updated information rather than summarily adopting the DRC’s four year old report and recommendations.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Roberts v. Bucci

Roberts v. Bucci

Question: Does the family court have jurisdiction to consider a CR 60.02 motion involving a DVO?

Answer: Yes. By its plain language, CR 60.02 provides an avenue by which a party may seek to be relieved from a “final judgment, order, or proceeding.” Where the issuance of a DVO adjudicates all of the rights of both parties in the proceedings with nothing left for its consideration, the order is final. In fact, in cases where issuance of a DVO adjudicates all rights of the parties, the parties also have the right to appeal. Therefore, the relief afforded by CR 60.02 as to “final judgments, orders, or proceedings” is available as to DVOs if a movant sets forth any of the criteria covered by the rule.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.

E-Discovery

E-Discovery: A Special Publication of the ABA Section of Litigation is available for purchase ($19.95) here.

More On Changes Adopted And Not Adopted To Kentucky Rule Of Civil Procedure

In May, 2006 when we posted some of the proposed civil rules changes, we tracked the changes so you could see what was added and/or deleted from the proposed rule. The changes were not hightlighted when finalized and published in the Bench and Bar, so we thought it might be helpful to repost so you could see what's new. In doing so we noticed several proposed rules changes that were not adopted, so now is a good time to highlight that as well. There are several other rules changes that do not relate just to family law, such as the record on appeal, briefs, and filing fees. The Kentucky Law Blog posted a link to the online source, so go there to look at them.
These rule changes were adopted as proposed:
Proposed Civil Rule Change: Where to File Family Court Appeal
Proposed Change in Civil Rule for Citation of Unpublished Decisions

Not adopted:

Proposed Civil Rule Change: Personal Data Identifiers
Proposed Civil Rule Change: Accelerating Appeals of Paternity, Dependency, Abuse, Neglect, Domestic Violence and Juvenile Status Offense

Welch v. Velten

Welch v. Velten, 185 S.W.3d 163 (Ky. 2006)
Issue and Holding:
Whether a party’s motion to dismiss her opponent’s appeal pursuant to Kentucky Rules of Civil Procedure (CR) 76.34(6) suspends the running of time within which that party may file a notice of cross-appeal, pending a ruling on the motion to dismiss. The Court held yes, the filing of a motion to dismiss suspends the running of time in which that party may file a cross-appeal.

Facts:
The family court entered its final judgment in the divorce proceeding on August 1, 2002. Both parties filed timely motions to alter, amend of vacate the judgment under CR 59.05. The court then entered an opinion on December 3, 2002 addressing the arguments and modifying the original judgment. Velten then filed a motion pursuant to CR 59 to amend the December 3rd order. The court denied this motion on June 27, 2003, and Velten filed his notice of appeal on July 18, 2003.
On July 28, 2003 Welch filed a motion to dismiss the appeal as untimely filed in the Court of Appeals. The Court of Appeals denied the motion on September 10, 2003. Welch filed her notice of cross-appeal on September 19, 2003. The Court of Appeals dismissed the cross-appeal as untimely filed. The Supreme Court granted discretionary review.

Analysis:
The Court held that any ambiguity in CR 76.34(6) is best resolved in favor of having appeals and cross-appeals decided on their merits. Therefore, the timely filing of a motion to dismiss an appeal will suspend the running of time within which a party may file a notice of cross-appeal.

More On Citing Unpublished Opinions

The Indiana Law Blog posted an excellent updated article on the status of citing unpublished opinions at the federal and state levels. Kentucky non-published opinions have long been available on Westlaw and have been online at the Court of Justice website for some time, so we did not have to address the transparency issue. There was very little opposition by the bench or bar to the publication of previously unpublished opinions and less to the prospective publication of all decisions. However, our appellate judges, with the rule change, will have a heavier burden and more responsibility, sentiments expressed by Arizona judges and which caused them to reject publishing all opinions.

"Appellate Judge Donn Kessler (Arizona) said there is one big reason he and his colleagues decide not to publish a ruling. 'A good percentage of the briefs we get are either extremely poorly written, or an issue is not properly presented, or the record is not there,' he said. Kessler said it would be wrong to put out a published decision, which then automatically could be cited as precedent, in those kinds of cases.
Ruth McGregor, chief justice of the Arizona Supreme Court, also is cool to the idea. McGregor, who was an appellate judge before being named to the state's high court, conceded there's something else at issue. Judges who are faced with 120 to 150 rulings a year just don't take the same amount of time in their rulings when they know they won't be published. 'You only have so many hours each day and weekend and night,' she said. 'There's only a certain amount of time and care you can take in decisions,' McGregor said. 'When they're unpublished, it allows a little more freedom. So long as you get to the right result you don't have to be quite so careful about the language that you're using.' "

Consider a Kentucky family law issue arising from the 1996 legislative amendment to KRS 403.190. Last year an unpublished opinion was rendered as to what this change meant. The decision was unpublished. While it still won't be precedent, on January 1, 2007 it may be cited and considered. We ordered the briefs and the issue was not even argued by the lawyers. Oral arguments were not requested nor held. No motion for reconsideration was filed by either party and no motion for discretionary review filed. We then ordered the legislative history and the legislative intent is abundantly clear and is contrary to the unpublished opinion. So, now we have a statement of law from the Court of Appeals which may be cited and considered where the court had no help from the advocates. As a practitioner, it will be interesting to see how such issues are argued when an opposing party cites an unpublished opinion. Arguing the legislative history is simple, of course, but what will be good techniques to show a court that the appellate panel issuing the unpublished opinion did not have the benefit of the arguments that you are now making and that should be dispositive? How can you make briefs or the record of an oral argument held in a different case part of your record or authority? Add to this the issue of page limitations on appeals briefs and we're entering a doozy of a time for creative advocacy.

I suspect we will see more call by the court for oral argument, increased judicial time spent writing opinions, and increased need for staff attorneys. If our dockets continue exponential growth without corresponding financial resources, we may need to explore further some system of ruling on appeals that is not all published or nothing published.

Unpublished opinions may be cited in Kentucky.

It’s official: effective January 1, 2007, unpublished Appellate Opinions rendered after January 1, 2003 may be cited for consideration if there is no published opinion on point.
Section (4)(c) of CR 76.28 will read:
(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
As a member of the Kentucky Supreme Court's Civil Rules Committee, I suggested making the rule prospective so all we thought we knew about the law wouldn't have to be revisited, all our treatises wouldn't have to be updated with old unpublished cases, and we wouldn't have to do legal research on every issue even if we think we know the law just to see whether in the past there was some old unpublished case. I don't know why they settled on applying the law only to 2003 and later opinions, but I am glad it was limited to some extent and I am also pleased it applies only when there is not published authority on point.

More Kentucky Family Court Links

Yesterday we posted the new Rules of Practice of Jefferson Circuit Court, Family Division and its new website. Today LawReader posts links to:
Other Kentucky Court Family Law websites
Administrative Office of the Courts forms available online
A link to the local rules of practice of all Kentucky Courts with Family Divisions
Divorce Education programs throughout the state

AOC's Position on HB424 Explained

Scott Furkin, General Counsel, Administrative Office of the Courts, Kentucky, explains the confusion over the implementation of HB424 in a letter to be published next month in the Louisville Bar Briefs. You can read it Download hb424expain.pdf, now.
COMMENT: It does appear that the legislature yielded to the Kentucky Rules of Civil Procedure, so we must wait for the Rules to be amended before the clerks will accept pleadings under seal. Until then, we have to file all the private information in the public record.

Personal Data Identifiers; How Can AOC Trump The General Assembly?

HB 424 became law July 15, 2006, as we reported April 11, 2006. Yet, we have heard the Kentucky Administrative Office of the Courts is delaying enforcement pending the Kentucky Supreme Court's likely revision of the Kentucky Rules of Civil Procedure.

John Helmer's Comment on Personal Identifiers

Thanks to John H. Helmers, Jr. for his comment on this proposed change to the civil rules:
"It seems classic overkill to eliminate the use of the names of children from every pleading (Petitions for Dissolution of Marriage, Motions, Custody Evaluations, Affidavits) to prevent identity theft. Have there been verified instances where individuals have used names of children to steal identities? I tend to believe that the use of initials for children depersonalizes the proceedings and the fact that Family Court is dealing with the lives of real children."

Proposed Civil Rule Change: Personal Data Identifiers

The following proposed civil rule change is on the docket for the KBA June Seminar:

CR 10.01 Caption; names parties - personal data identifiers

Proposed Civil Rule Change: Where to File Family Court Appeal

Where to file an appeal has frustrated many taking an appeal from Family Court. It you know which courts are established pursuant to Ky. Const. section 110 (5) (b) and section 112 (6), this proposed rule change will clear everything up:

CR 73.01 (2): All appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken. Appeals from family courts that are established pursuant to Ky. Const. Section 110(5)(b) or Ky. Const. Section 112(6) shall be taken to the Court of Appeals. After such filing...

Last month we digested Thorn v. Commonwealth and Sirley Robinson.

So you have it right at hand, here are the sections of the Kentucky Constitution mentioned at the outset:
Section 110 (5) (b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

Section 112 (6) The Supreme Court may designate one or more divisions of Circuit Court within a judicial circuit as a family court division. A Circuit Court division so designated shall retain the general jurisdiction of the Circuit Court and shall have additional jurisdiction as may be provided by the General Assembly.

Comment: This is not how the rule came out of the Civil Rules Committee of the Supreme Court. Adding Section 110 (5)(b) adds nothing. Rather than refer to Section 112(6) it would be better to spell it out.

Proposed Civil Rule Change: Accelerating Appeals of Paternity, Dependency, Abuse, Neglect, Domestic Violence and Juvenile Status Offense

The Court of Appeals is already, by order, putting most of these matters on a fast track, as well as child custody cases. The proposed rule would provide:

CR 71.12(2)(a), (3)(b) and (4)(c) and (d) Briefs

Proposed Change in Civil Rule for Citation of Unpublished Decisions

The Kentucky Supreme Court has proposed an Amendment to the Kentucky Rules of Civil Procedure regarding the citation of unpublished decisions, as follows:

The proposed amendments to section (4)(c) of CR 76.28 are:

(c) Opinions that are not to be published shall not be cited or used as [authority] binding precedent in any other case in any court of this state, however such unpublished decisions rendered after January 1, 2003, may be cited for consideration by the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed documents and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

This rule change, among others, will be considered in an open session on Wednesday, June 14, 2006, at 9:30 a.m., in connection with the KBA Annual Meeting. The hearing will occur in ballroom (A-E) at the Northern Kentucky Convention Center in Covington.

It is important to emember that this is a proposed rule change. Only after discussion and reconsideration by the court will a new rule be finally adopted. In the interim, citiation to unpublished opinions continues to be improper.

Combs v. Daugherty and Jennifer Combs, Real Party in Interest,170 SW3d 424 (Ky.App., 2005)

Combs v. Daugherty and Jennifer Combs, Real Party in Interest,
170 SW3d 424 (Ky.App., 2005)
Discovery from child support obligor for purpose of recalculating
child support is not permitted until a motion for modification of
support is filed.

Discovery from child support obligor for purpose of recalculating child support subsequent divorce decree is not permitted until a motion for modification of support is filed. CR 76.36(4) Motion for Intermediate Relief seeking a stay of enforcement of an Order Compelling Discovery, which provided a warrant of arrest would issue if the discovery was not produced, was granted.

Com., Cab. For Health & Family Services v. Byer, 173 SW3d 247 (Ky.App,. 2005)

Com., Cab. For Health & Family Services v. Byer,
173 SW3d 247 (Ky.App,. 2005)
Cabinet for Health & Family Services was a party to the action
because it initiated dependency action, but trial court order
directing the Cabinet to pay expert witness fees was reversed
because KRE 760(A) requires a court to enter a show cause order
why expert witnesses should not be appointed when the court
desires to appoint its own expert. This process guarantees the
parties will have notice and an opportunity to be heard.

Gullion v. Gullion, 163 SW3d 888(Ky.,2005)

Gullion v. Gullion, 163 SW3d 888 (Ky., 2005)
Affidavits are not required for CR 59 motions. Upon remand
the trial court is directed to consider only evidence in existence
at the time of trial. A custody modification cannot be requested
until there is a final custody order to modify.

Parents had 50/50 pendente lite joint custody. The Circuit Court adopted the recommendation of the DRC giving father physical custody of the children. Mother filed a CR 59 motion to alter, amend or vacate and within the motion requested primary custody. Before it was ruled upon, husband obtained an emergency custody order which suspended mother's visitation. A year later the Court ruled on the motions, considering facts that had arisen since trial, and designated mother as the primary custodian. The Supreme Court held that affidavits were not required because a CR 59 motion is procedurally different than a KRS 403.340 modification. Affidavits are not required for CR 59 motions, just as they are not required for CR 60 motions. The trial court maintained continuing jurisdiction while the CR 59 motion was pending. A custody modification cannot be requested until there is a final custody order to modify.

The matter was remanded to the trial court because the CR 59 motion was granted, in part, on evidence not in existence at the time of trial. If facts arose since the trial that justified a change in custody, the law adequately provides a method to address such a situation.

Newly discovered evidence as a CR 59 grounds must be existing at the time of trial, otherwise litigation would never come to an end.