Divorce Law Journal

Divorce Lawyers as Objects of Violence

Law.com reports this month self-protective tips divorce lawyers can use to protect themselves from violence, which is important considering the stats that 60% of divorce lawyers have been threatened by adverse parties. It reprints an excellent article from The Matrimonial Strategist and links to the subsciption section of that publication.

Collaborative Family Law in KY- A Look Back

A couple of years ago the Courier-Journal published a piece I wrote on the Kentucky Collaorative Family Law Network,as we prepared to transition to an interdisciplinary group. It gives a little perspective on where we were at the time and it's posted here. As we blog along, I'll update you as to where we are now and where we're headed.

Ideas: How to Make a Great Statewide Divorce Law Resource

We would love to have guest articles from financial experts and mental health professionals. Having guest submissions from divorce lawyers in northern, central, and western Kentucky and from our Louisville colleagues would also be a welcome resource. Send us your news, your hot tips, and insights from your professional realm as we build a blog for family lawyers that will help all of us serve our clients better. We will give you generous attribution and link to your webstie. The result will also hopefully become a resource where we have loads of family law practice aids archived at our fingertips.

Mattingly v. Mattingly, 164 SW3d 518 (Ky.App., 2005)

Mattingly v. Mattingly, 164 SW3d 518 (Ky.App., 2005)
Obligation to pay college for a child over 18 was not dischargeable
in bankruptcy, even where mother failed to contest dischargeability
in Bankruptcy Court.

Father's obligation under Settlement Agreement to pay children's college expenses was not dischargeable in bankruptcy. KRS 405-020(1) did not preclude trial court from finding that father's obligation to pay for children's college expenses under Divorce Decree was in the nature of support, as parties are free to "agree otherwise" in writing. Nor does the mother's failure to challenge the discharge of the debt in the bankruptcy proceedings preclude her from bringing a claim in Family Court. Both state courts and federal courts have jurisdiction to determine dischargeability of an obligation.

Rodney P. v. Stacy B., 169 SW3d 834 (Ky., 2005)

Rodney P. v. Stacy B., 169 SW3d 834 (Ky., 2005)
Increase in obligor's income does not warrant increase in child
support where child is committed to the state. A parent cannot
be obligated to pay both the state for the support of a child and the
custodial parent. If the obligor becomes required to pay support to the
Department, the consequence would be conceptually the same as if the child
were in split custody. In that event, the trial court should calculate
child support to the custodial parent pursuant to KRS 403.212(6)-
Split Custody.

Reinle v. Com., 170 SW3d 417 (Ky. App., 2005)

Reinle v. Com., 170 SW3d 417 (Ky. App., 2005)
Trial court erred in holding real estate sales proceeds for an
incarcerated child support obligor to be held by Master
Commissioner to be applied to future child support payments.
Equitable remedies are inapplicable when there is a plain,
adequate legal remedy, which exits under KRS 387.290(1) under
which a curator of the estate of a prisoner may be appointed to
provide for the support of the family and education of the children
of the convict.

Thompson v. Thompson, 172 SW3d 379 (Ky. 2005)

Thompson v. Thompson, 172 SW3d 379 (Ky. 2005)
Child support accrues as each installment becomes due and such
fixed, liquidated debt is not subject to retroactive modification.

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.

ED v. Commonwealth of Kentucky and Cabinet for Health and Family Services, 152 SW3d 261 (Ky.App., 2004)

ED v. Commonwealth of Kentucky and Cabinet for Health and
Family Services, 152 SW3d 261 (Ky.App., 2004)
District Court order permitting grandparent to visit during parents'
visitation time was insufficient to entitle grandmother to visitation
after parental rights of parents were terminated. Statute governing
grandparent visitation requires a visitation order issued by Circuit
Court prior to the termination of parental rights.

Statute granting grandparent visitation requires a visitation order issued by Circuit Court prior to the termination of parental rights of grandparents' son or daughter to protect grandparent visitation rights with the children of that son or daughter. A District Court order establishing the number of hours of visitation that parents could have with their children in state custody and providing that grandparents may visit the children during this time was not sufficient to serve as a basis for maternal grandmother to have visitation with the children upon termination of the parents' parental rights. This order did not give grandparents visitation independent of the parents nor specify visitation rights for the grandmother, and there was no indication that court was aware of the maternal grandmother or her fitness for visitation.

Just Becasue Your PI Finds the Goods Doesn't Mean You Won't Be In Trouble

The Family Law Professor's Blog reported on this case today following yet another N.Y. Times article. Detective Anthony Pellicano was indicted in February following a long investigation which is including more than one divorce lawyer in its net. One of the allegations is that the lawyer received wiretapping information from the detective. Moral of the story: Don't let your P.I. do anything you couldn't ethically do yourself.

Taping Phone Conversations

We found this helpful site, Reporters' Committee for Freedom of the Press, thanks to John Stout on the ABA Family Law Section listserve. We tell our clients in KY that phone conversations cannot be taped if the client is not a party to the conversation. The tricky part is conversations between persons in different states. Even if the client is a party, they may be illegal. The rcfp gives a state-by-state guide to what can be done where.

Relocation

Chief Judge Stephen George gave an excellent presentation on relocation at the AAML/LBA seminar last week," Fenwick, Dead or Alive?" We have made an editorial decision, though, not to report on judges' comments on this blog. The ABA Family Law Advocate features relocation as the subject of its most recent edition and contains a good bibliography. Bill Hoge pointed out that you don't have to be an ABA member to subscribe to the Advocate. Having no respect for Derby, the ABA Family Law Section at their Spring meeting next week in Washington, DC, will have a 2 1/2 hour plenary presentation on relocation on Thursday May 4, 2006 at 9:45 am. The speakers will include Judge Sundt of Rockville, Maryland, Professor Jeff Atkinson of Chicago, Attorneys Mary Jo Curley and Kathryn Murphy, both from Texas, Mary Connell, EdD. of Fort Worth and Jan DeLipsey from Dallas, Texas. It remains a hot issue in family law.

S.R.D. v. T.L.B., 174 SW3d 502 (Ky. App., 2005)

S.R.D. v. T.L.B., 174 SW3d 502 (Ky. App., 2005)
Husband who held himself out to be child's father for 9 years
was equitably estopped to deny paternity and child support
obligation when at the time of the divorce decree there was and
uncontested assertion that the marriage produced three
children.

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.

Cox v. Cox, 170 SW3d 389 (Ky., 2005)

Cox v. Cox, 170 SW3d 389 (Ky., 2005)
Where Texas lacked minimum contacts with the husband
and, therefore, lacked jurisdiction to impose a lien on
property in Kentucky, its judgment regarding the lien was
not entitled to full force and credit and was not a "foreign
judgment" under the UEFJA.

Dobson v. Dobson, 159 SW3d 335 (Ky.App., 2004)

Dobson v. Dobson, 159 SW3d 335 (Ky.App., 2004)
Spouse granted innocent spouse relief by the IRS is
not entitled to res judicata and trial court assignment
of tax deficiency 40% to innocent spouse was upheld.
Tax audit has uncovered a tax deficiency, but trial court
reasoned that the parties benefited from the lower tax burden
and innocent spouse was later required to pay the share of
taxes for which she would have been responsible had the
deductions not been disallowed.

Goff v. Goff, 172 SW3d 352(Ky.,2005)

Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.

Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he had moved. Wife remained in Tennessee.

On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended his petition, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff's motion to stay due to her non-appearance.

On January 17, 1997, the Tennessee court dismissed Mrs. Goff's action on the grounds there was an earlier pending action in Kentucky. The parties' child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.

In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff's visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally and that Kentucky did not have jurisdiction to determine modification, as the child has never resided in Kentucky.

The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and did not have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.

The Court of Appeals held that under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (the child was was only 90 days old), and Tennessee declined jurisdiction.

The second issue was whether Kentucky had continuing jurisdiction to modify a custody decree, having acted originally. The trial court held held Kentucky did not, as the child had never lived in Kentucky. The Court of Appeals affirmed on this issue.

Discretionary Review was granted. The Supreme Court of Kentucky affirmed the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky did not have jurisdiction to modify custody, as the child never resided in Kentucky, and more than 6 months had gone by, thus, Kentucky lost jurisdiction.

COMMENT: Kentucky has now adopted the UCCJEA

Scholarship

Now that we are a bit public, it seems appropriate to talk about the scholarship of legal blogs. In a posting on 3L Epiphany a U.S. District Court Judge is interviewed about his use of blogs as secondary authority. We found it today from a Dennis Kennedy posting on Corante. and then saw it all over the blawg world with the most notable comment being "the future will belong to the flexible."

New Case Categories

Michael Stevens was very kind to announce the presence of this blog in his KentuckyLawBlog today. The good news is you're reading it. The bad news is that you will see the learning curve in progress as we improve it.
Earlier this month we posted final decisions with SW3d cites for the past year and one-half. We are going to repost them in the coming days, one at a time, so we can group them by category. As we add new decisions once they become final, we will then add them to the category and develop a database over time. So, if you know the cases, breeze right on by them. My sense is, though, that it won't hurt any of us to read about a published decision a second or third time.

Allen v. Devine, 178 SW3d 517 (Ky.App., 2005)

Allen v. Devine, 178 SW3d 517 (Ky.App., 2005)
Once a finding is made that persons are de facto custodians,
they then are on equal footing and court must then determine
best interest. Blood relationship is but one of many factors for
the trial court to consider.

Krystal is the mother of three minor children, Austin, Shayann, and Ayla. Burt is the father of Austin; Kevin is the father of Shayann; Jason is the father of Ayla. Ayla has resided since birth with Krystal's mother, Darlene Kisselbaugh, and this child is not involved in this action. Krystal married and divorced Jason; she then lived with Burt from 1997 until 2000, when Burt disappeared; she then lived with Kevin during the pendency of this action. Danny Devine is Krystal's father.

In 1996 Krystal was diagnosed with bipolar disorder, but she failed to take medication for this condition. She and Kevin have a history of alcohol and drug abuse.

Shortly after Austin's birth in 2000, Krystal and Burt rented a home in Logan County, Kentucky from Ed and Judy Allen. In February 2002, Mr. and Mrs. Allen began keeping Austin and Shayann in their home on a regular basis, as Krystal and Burt could not financially provide for the children. Austin was then 20 months old, and Shayann was two months old. Krystal visited the children once or twice a month, and Kevin visited the children once every other week. Mr. and Mrs. Allen, who are not related to anyone involved in this action, provided essentially all of the children's needs, with some small contributions from Krystal and Kevin and from Danny Devine.

In June 2002 Jackie Sanders, Kevin's mother (paternal grandmother to Shayann), filed a petition for grandparent visitation. Krystal told Jackie the children were residing with Krystal's cousin Judy (who undisputedly is of no blood relation to Krystal).

Between February and September 2002 the Devines visited the two children once or twice monthly, later moving to have a more consistent visitation schedule including overnight. They claimed they did not know the children were residing full-time with Mr. and Mrs. Allen as Krystal hid this from them.

In March 2003 Krystal met with her father and stepmother, Danny and Lisa Devine, and Krystal agreed the Devines should seek custody of the two children, and on May 1, 2003 they filed a petition for custody.

The trial court found that Mr. and Mrs. Allen were the de facto custodians of Austin and Shayann, but held that "as Mr. and Mrs. Allen are not related to the children, it would be in the children's best interest for the Devines to have custody."

Mr. and Mrs. Allen appealed to the Kentucky Court of Appeals, who upholds the finding that the Devines are the de facto custodians of the children, and reverses as to the award of custody to the Devines. The finding of de facto status puts the Allens on equal footing with anyone - parent, grandparent, etc. desiring custody and the trial court must consider more than just blood relationship. The trial court must give equal consideration as required by KRS 403.270(2) in determining "best interest." Blood relationship is but one of many factors for the trial court to consider.

Crossfield v. Crossfield, 155 SW3d 743 (Ky.App., 2005)

Crossfield v. Crossfield, 155 SW3d 743 (Ky.App., 2005)
Change of residential parent within two years of custody decree
requires supporting affidavits and finding of endangerment or
placement with de facto custodian.

John and Keni had three children during their marriage, a boy and two girls. They separated in February 2002, and later filed a joint petition for dissolution, with an Agreement awarding joint custody and Keni designated primary residential custodian. This was later amended with John being designated the primary custodian. Less than nine months later, Keni filed a motion to modify the time-sharing schedule. No affidavits were attached to the motion. During the hearing, Keni acknowledged that she wanted the decree modified so that she would become the primary residential custodian.

The DRC conducted a hearing and recommended that "the best interest of the children would be served by returning the children to Mom's care," that the time-sharing arrangement be reversed, and that John pay child support to Keni.

John appealed to the Kentucky Court of Appeals. Keni argued her motion was merely one to modify visitation. Held - reversed - the modification altered the primary residential custodian, and is thereby subject to the statutes relating to modification under Fenwick v. Fenwick.

Note: this Court places emphasis upon the term "primary residential custodian." While not defined by statute, it is generally used to refer to the party with whom the child or children will primarily reside. The other parent is awarded visitation. Returning the children to Keni's care would result in Keni assuming the day to day decisions concerning the children, she would be responsible for their normal care and control, the parenting time would be reversed, as would the child support obligation. "Under these circumstances the modification would be of custody, not visitation."

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.

The Finest Family Law Blog To Date

The Family Law Professor's Blog, edited by Robert E. Oliphant, Nancy Ver Steegh, and Barbara Glesnor Fines is a great resource and service to those of us who love this area of the law. There's also a link on our "Other Family Law Blogs." Check them out, and subscribe to the RSS feed for your up-to-the-minute national family law news.

High Conflict Parenting

Joe H. Brown, PhD, Professor, University of Louisville Kent School of Social Work and Director of the Families in Transition Program announced at the AAML/LBA seminar a new program funded with a sizeable grant from The Bureau of Justice Administration. The goals of the program include helping high conflict divorced parents create parenting plans and to reduce repeated litigation over parenting issues. He and Mary Lou Cambron, MSSW of Jefferson Family Court, are seeking referrals from attorneys of Jefferson County parents with children between ages 6 and 11 who are at risk of high conflict and repeated parenting disputes. The criteria includes two or more motions related to custody or visitation, but excludes participants covered by an active Domestic Violence Order, active Child Protective Services case, and families already working with a Parenting Coordinator. They want to help and study these families before escalation of the conflict becomes permanently unmanageable.

Participants will be randomly assigned to one of two programs: Parents Achieving with Collaborative Teams, (PACT) will consist of a six session program led by licensed family therapists, aimed to help persons deal with anger and manage conflict and provide family/community support. Parent Education Referral Services (PERS) will have information sessions about parenting plans and anger management and referrals may be made to other agencies.

Dr. Brown has already trained the facilitators who include Dr. Sally Brentzel, Dr. Katie McBride and Judith Cumbler.

Families admitted will be served though March, 2007.

Look for an article in the May, 2006 LBA Bar Briefs. Meanwhile, they are already accepting referrals. If you have a case that may qualify, let Mary Lou Cambron (502)595-4787 know.

Thunder Over Louisville (and what does that have to do with Kentucky Divorce Law?)

Thuder Over Louisville enchanted 800,000 people last night. There's great coverage in the online edition of the Courier-Journal today. Louis Waterman, President of the Kenctucky Chapter of the AAML is on the Board of Directors of the Derby Festival Committee and after chairing the Pegasus Parade, Thunder is now the focus of his attention. While everyone missed his absence during most of our seminar and social events, the national Executive Committee of the AAML who watched the festivities from Steve Kreigshaber's office will now surely understand. That's the divorce law connection.

Musing, I also think there's a blogging connection. At lunch last week, the Goddess expressed her fear that the public perception of bloggers is that they are people with too much time on their hands. While I retorted that if you want something done, ask a busy person, I have been thinking about her comment. Many of us want to make a difference. Most of us will never touch 800,000 lives as Louis Waterman has, but the best of the best will try and aren't afraid of change or doing something new. There is room for creativity in life and there is room for creativity in how we improve the legal profession. One can only touch so many lives case-by-case. While the practice of law is a great joy, mentoring and shaping the law is also a fine way to protect the family and improve the practice, which is the purpose of the AAML.

Jim Hennenhoefer on Pre-Nup/Post-Nup Agreements

James A. Hennenhoefer, Vice-President AAML, San Diego, CA presented at the AAML/LBA Family Law seminar at the LBA on April 21, 2006. Jim has been instrumental in the creation and running of the AICPA/AAML biennial seminar in Las Vegas. His topic at the KY seminar was Pre-Nup/Post-Nup-“Love me forever, but not my Assets”

His opening quote was “Confidence is what you feel before you understand the situation.” In other agreements you are drafting with known facts. During the terms of these pre/post nuptial agreements, facts change. Law also changes. Attitudes change. Pre-Nups deal with the distant future. The potential liability arising from the drafting of these agreements is huge. He urged involving an estate attorney in the drafting and advised always to address choice of laws, as people may move during the marriage. Document every bit of advice you give your client before, during, and after the drafting.

Jim emphasized that charging an hourly rate for the drafting of these agreements is unfair to the drafting attorneys, and a large flat fee may be reasonable because of the attendant liability exposure for the failure to anticipate unforeseeable future events.

He discussed Blue v. Blue, 60 S.W.3d 585 (Ky. 2001) and what he considers the most important Kentucky case, Gentry v. Gentry, 798 S.W. 2d 928 (Ky. 1990), although his opinion of its importance may change depending on what happens with a Kentucky Supreme Court case in which discretionary review is pending.

Jim urges the Kentucky legislature to consider adopting some or all of the Uniform Prenuptial Act. It is always more difficult to draft these agreements when you are depending on case law rather than statutory provisions.

All that being said he presented some tips on the drafting:
Add choice of laws
Accommodate the passage of time
Anticipate birth of children, increase and decrease of wealth
Try to make it fair in the long term. Mitigate the idea that your client doesn’t want to share.
If there is a relinquishment of property or support rights, reflect the consideration so it will appear fair.
Consider a formula that increases with the duration of marriage
Make client comply with full disclosure, but include a waiver of disclosure
Do not attempt to limit child support
Advise client of danger of limiting spousal support
You must cause an attorney to be on the other side
Keep every revision of the agreement and all correspondence; make the correspondence show the negotiation that takes place
The pre-nup is usually the first pleading to be filed in the divorce in a few years. The drafting attorneys will be witnesses and unable to represent the clients in the divorce
Never draft in non-family law related issues; bring in an estate expert and other experts depending on the assets involved such as pensions
Consider videotaping the signing and recitation of understanding of the agreement. He gave us questions to ask the parties during the videotaping (the questions are also a good blueprint for the drafting).
Make sure every page is initialed and the signatures are notarized and give executed copies to both parties and lawyers
Give your client a letter advising he/she must comply with every provision of the agreement because noncompliance may be good reason not to enforce the agreement later
Make agreement language require changes to be only by subsequent written agreement
Advise client to keep written records of compliance with agreement
Also, tell client to still keep separate property separate and to keep tracing records even though they have a prenuptial agreement
Never draft unless it is at least 60 days in advance of the wedding
Procure and use the most thorough interview form you can find
Write your client advising in advance there is no guarantee that the agreement will be enforceable
Make sure the agreement specifically addresses economic disparity

Notes from Laura Morgan and Guy Ferro's Spousal Support Presentation

Laura Morgan, www.FamLawConsult.com, VA (the “Goddess” and co-author of the Spousal Support Handbook to be published by the ABA in 2007) and Gaetano(“Guy”) Ferro, CT, President-Elect, AAML, presented Alimony, Spousal Support and Maintenance: A Musical in Six Acts at the AAML/LBA Family Law seminar at the LBA April 21, 2006. Here's the general outline and a few notes. Thanks Laura and Guy for permitting me to post about your great presentation.

“Those Were the Days, My Friend”

!. Introduction “Something’s Gotta Give”
What is Spousal Support and what is it supposed to accomplish?

II Traditional View of Alimony “Bbbbbad to the Bbbbone”
“I Know a Little Bit About a Lot of Things But I Don’t Know Enough About You”

III The First Wave “People Get Ready, There’s A Change A Comin”
Uniform Marriage and Divorce Act
“I am Woman, Hear Me Roar”
“I Will Survive”
“Working Nine to Five”

IV The Second Wave “Will You Still Need Me When I’m Sixty-Four”
“What I’ll Do When You Are Far Away And I Am Blue”
“Yip Yip Yip, Mum Mum Mum…Get a Job”
“What’s Goin On?”
“Take This Job and Shove It”

V Unanswered Questions “Time Keeps Slipping, Slipping Into the Future”
“Get Out of Here, and Give Me Some Money, Too”

VI Current Trends “Money, That’s What I Want”
Compensation Based Method of Support
Fault “Your Cheatin Heart”
“Oh, I Believe in Yesterday”

VII Kentucky Law “The Sun Shines Bright in my Old Kentucky Home, ‘Tis Summer, the People are Gay” (unless you want to adopt children)
“Well, You Can Cry Me a River”
Turns away from UMDA, applies principle of the “equal degradation of standard of living of both parties” (not the legal standard, this is the description of the result as communicated by a KY Fellow at last year's seminar)

VIII Alimony Guidelines
Broad discretion in award of alimony is no longer justifiable and should be discarded in favor of guidelines, if not adopted as an outright rule. Bacon v. Bacon, 819 So2d 950 (Fla 4th DCA 2002)
The New Mexico Experiment 38 Family Law Quarterly 29 (2005)
38 June Md. B.J. 46 (2005)
33 U. Louisville J. Family Law 971,972 (1995)
Victoria Ho has also published on guidelines in the Florida Bar Journal and Divorce Litigation
Some Michigan counties use “Alimony Series” software endorsed by the Family Law Council of the Michigan Bar Association (www.marginsoft.net)
Fairfax VA Bar Association has download of guidelines of pendente lite alimony that has been in use since 1981
Arizona: www.azbar.org/sections/family/archives/
Nevada has computer program which gives support result based on historical judicial awards over 30 years with analysis of factors underlying awards.
Johnson County Kansas guidelines distributed. AAML Fellow Ron Nelson is a big supporter of these guidelines. 20% (no children) 25%(with children) of difference in gross income of parties, gross income defined by child support guidelines definition, duration 2 years for first 5 yrs of marriage then 1 year for every 3 yrs, with maximum of 10 years plus 1 month, but there are other factors that may be considered.

There is growing, but guarded support of adoption of guidelines

In short term marriages, support is less problematic. In long term marriages, indeterminate awards are preferred.

IX ALI Principles, Compensating Spousal Payments
Principles of Family Law and Recommendations, 2002, 1100 pages, spousal compensation section, 110 pages. Useful state-by-state statement of the law ; recommendations for spousal support are controversial. They created the policy that spousal support should be compensation to allocate financial losses arising from dissolution that are equitable in application and disregard fault. Compensable loss of earnings include those related to caretaking of children or others to whom moral responsibility arose. The person who earns most of the money should end up with most of it. Comments to the final draft say they are merging concepts of support and property.

X The AAML Response
In response to a survey, most Fellows believed the most important factor should be need, then the length of marriage and earnings and the least important factor is fault. What most Fellows like least about guidelines was the lack of discretion and interestingly, what most Fellows like least about the lack of guidelines is too much discretion resting with the court! A blue ribbon Academy committee is studying the issue and the AAML expects to publish a formal official response

Further Reading:
Starnes, Mothers as Suckers: Pity, Partnership and Divorce Discourse, 90 Iowa L. Rev. 1513 (2005),
Kapalla, Some Assembly Required: Why States Should Not Adopt the ALI’s System of Presumptive Alimony Wards in Its Current Form, 2004 Mich. St. L. Review 207
(2004)

ELVIS HAS LEFT THE BUILDING!

Unfortunate Supreme Court Innuendo

Andy Wolfson reports in today's Courier Journal that three justices may retire before the expiration of their terms this year, permitting Gov. Fletcher to appoint replacements. I have been a long term critic of subjecting our judges to the elective process. Mr. Wolfson didn't emplasize the fact that Gov. FLetcher's appointees will be limited to the names vetted and recommeded by the Judicial Nominating Commission. Nevertheless the innuendo that politics is invading our Supreme Court is disconcerting, particularly considering the political nature of several pending cases. For example, he cites the fact that a same sex custody case is pending, which was previously posted on this blog. To preserve the integrity and respect of our highest court, it would be best for these cases not to be rushed to decision, and to let them be decided by the newly reconstituted court after the newly elected members take office.

AAML/LBA Ninth Annual Family Law Seminar

With a huge attendance, nearly standing room only, the Ninth Annual AAML/LBA seminar kicked off today in Louisville. In coming days and weeks we will report on the topics of interest and the news presented. Speakers were so very candid (some even asked first whether the seminar was being taped) that I feel compelled to obtain permission from some of the speakers to publish the commentary. I don't want to say anything in this blog that will diminish the frank and open and invaluable exchanges we have at this type event. Gil Feilbelman from Salem, Oregon also presented today and the national lineup tomorrow is stellar,with a number of speakers being tapped from the AAML Executive Committee whose meeting in Louisville coicides with our seminar. Add Laura Morgan (aka the "goddess') to the mix, and Friday's session should be over the top.

New URLs are here

Our new preferred URL is now pointed to this site, www.KentuckyDivorceLawBlog.com. Two sub-URLs are also pointed here, www.LouisvilleDivorceLawBlog.com and www.LouisvilleDivorceBlog.com. The thought is that down the road we may want to separate out the postings which are limited to Jefferson County from the postings relevant to the rest of the state. As we build content, though, all will be directed here.

Lexington Children Removed from Abused Women in Shelters

The Courier Journal printed an AP story on Monday revealing that the state has removed 50 children in the last year from women who fled to Lexington, KY shelters to escape domestic violence. That morning I asked Nina Mosley, a Louisville attorney who often represents women in shelters (and whose husband is the Director of Wayside Christian Mission in Louisville) whether she has seen such removals in Jefferson County and was pleased to hear that had not been her experience. She only sees children removed when a serious issue such as drug abuse causes the children to be neglected. Today's CJ editorial page confirmed the issue appears limited to Lexington. Surely a thorough investigation will follow.

On the Light Side - Country Divorce Tunes

Many years ago, Kathy Revell, the daughter of Retired Judge Richard Revell (she was also his secretary at the time) circulated this country divorce song quiz. We have added to her list of love gone wrong tunes starting with #32, following her list of artists. Divorce is about as sad a field of law as an attorney sees, so you have to find a little humor where you can! We never run out of projects, but one that has been on the list for a long time is to download these songs. Maybe this blog will be the perfect place for such a repertoire.

When Good Love Goes Bad . . .
How Many Recording Artists Can You
Match With These Songs?

Domestic Violence Offender Follow-Up

The April 16, 2006 Couier-Journal reported the creation of a new District Court docket to monitor compliance with domestic violence offender treatment. Today's Courier editorial page rightly praised Judge Angela Bisig's pilot program, but inaccuratley referred to the court as a Domestic Violence Court. The Family Divisions of Circuit Court in Circuits where a Family Court exist have jurisdiction to enter Emergency Protective Orders and Domestic Violence Orders and may order treatment, including anger management. These orders are not criminal convictions. The violation of an EPO or DVO, however, is a crime. Once convicted it is District Court that imposes sentences, probation, supervision, etc. and this is the docket the pilot program refers to.

Wage Assignment Order Revisions

The OCSE is seeking comments by April 21, 2006 to revisions to the federal wage assignment order form.Download wao.doc

RSS Feeds

RSS feeds are the way to go to receive manageable updates to news and new blawg postings. Thanks to KY's Michael Stevens and his www.KentuckyLawBlog.com and LouisvilleLawWire for making this easier for the rest of us. His suggestion that FeedDemon was the easiest aggregator was taken (for $29 why take a more difficult route?) and now most news in one location can be checked at leasure.

L.L.M. in Family Law

Hofstra Law School established an L.L.M. program in family law and will enroll its first students beginning in the fall of 2006, in response to increased specialization and interdisciplinary issues. http://www.hofstra.edu/Academics/Law/law_llm_familylaw.cfm. This is the third such program in the U.S. although in other countries they appear to be as well known as our L.L.M. programs in tax law.

Gathering of KY Blawgers

I have invited the other KY blawgers to my home Friday April 28 for drinks and dinner. All have insipired and helped me as I created this blog, yet few of us have met. It will be great fun sharing tips and ideas. My daughter has dubbed it the "Geek Party." If you are a KY lawyer with a blog and would like to be included, please email me at [email protected] or post a comment.

Domestic Violence Protection for Pets

Maine has new pet protection provisions in its domestic violence statutes. I know of no reason in KY why a court could not protect animals as part of the entry of a domestic violence order in the absence of a specific statute. The comments are passionate to the Press Herald online report of the new law. http://pressherald.mainetoday.com/news/statehouse/060412pets.shtml?com_full=1#begin

Innocent Spouse Tax Relief

The Family Law Taxation Blog has a recent posting about innocent spouse tax relief: http://www.familylawtaxation.com. However, even if the IRS absolves a sopuse from tax liability, in a KY divorce, the trial court can assess some of the burden of the tax to the innocent spouse.
Dobson v. Dobson, 159 SW3d 335 (Ky.App., 2004)
Spouse granted innocent spouse relief by the IRS is
not entitled to res judicata and trial court assignment
of tax deficiency 40% to innocent spouse was upheld.
Tax audit had uncovered a tax deficiency, but trial court
reasoned that the parties benefited from the lower tax burden
and innocent spouse was later required to pay the share of
taxes for which she would have been responsible had the
deductions not been disallowed.
.

New KY Family Law Published Cases

As promised, here's the complete list and summary of the latest Kentucky cases that are final and now published. I have included just a few important non-final cases, but the status is indicated. Retired Chief Family Court Judge Richard A. Revell summarized half the cases in connection with our Fifteenth Annual Domestic Relations Update at the Louisville Bar Association yesterday. The seminar was well attended and the discussion lively. I will try soon to post the cases by category in a sidebar for easier access and frequent additions.

I. Child Custody and Visitation

Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.

Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he now resided. She remained in Tennessee.

On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff's motion to stay due to her non-appearance.

On January 17, 1997, the Tennessee court dismissed Mrs. Goff's action on the grounds there was an earlier pending action in Kentucky. The parties' child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on
March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.

In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff's visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally; and Kentucky does not have jurisdiction to determine such issue now, as the child has never resided in Kentucky.

The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and does not now have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.

The Court of Appeals overruled as to the first issue and affirmed as to the second issue. The Kentucky Supreme Court then granted Discretionary Review.

Held: Under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (was only 90 days old), and Tennessee declined jurisdiction.

The second issue is whether Kentucky has continuing jurisdiction to modify a custody decree, having acted originally. The Court holds Kentucky did not, as the child has never been in Kentucky. The Court of Appeals affirms on this issue.

Discretionary Review is sought and granted. The Supreme Court of Kentucky affirms the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky does not have jurisdiction to modify custody, as the child has never resided in Kentucky, and now more than 6 months have gone by, thus, Kentucky has lost jurisdiction.

Personal Identifiers to Be Private

Finally we have a law sealing social security numbers, date of birth, name of minor child and financial account numbers in domestic relations court files. The linked HB 424 signed into law by Govenor Fletcher April 4, 2006,  http://www.lrc.ky.gov/RECORD/06RS/HB424/bill.doc, permits access to this unredacted information by only a party to the case, counsel of record, a judge or authorized court personnel, Cabinet for Health and Family Services involved in a child support matter or one permitted access by specific court order.

Alimony Recapture

When maintenance is front-end-loaded, the payor may be required to recapture in the third year excess alimony. Two calculations are necessary.The first compares the second year payments to the third year payments. If the amount paid in year three plus $15,000 is less than paid in the second year, the excess will be recaptured. The second computation compares the first year payments to the adjusted average of the second and third year payments.  If this average plus $15,000 is less than the payments in the first year, the excess is recaptured. I have always used an appendix to Melvyn B. Frumkes' excellent Divorce Taxation, James Publishing, Inc. to manually figure whether a settlement poses a recapture problem. There is now an online free calculator available to make the computations:http://www.smartmoney.com/divorce/basics/index.cfm?story=alimonycalc. There are numerous caveats, however, so the prudent practioner will always want to consult Frumkes, a tax attorney, or a CPA.

Paternity Fraud

An April 10, 2006 National Law Journal article on paternity fraud has been reprinted at www.law.com. This is the flip side of the dual paternity issue where non-biological fathers have been required to pay child support. It is important to distinguish the rights/duties of husbands who are non-bio dads who want to raise and support children born during a marriage. The Uniform Parentage Act (not adopted in KY) was well studied, but there may be some glitches.

Dual Paternity

Utah has decided an important dual paternity case, link below. The law in Kentucky is unsettled where a husband/non-biological father wants to continue a relationship with and support of a child born during the marriage. Although a case is pending in the Kentucky Court of Appeals, until a KY case is published the Utah decision lends support to the argument that unnecessary attacks on paternity should be discouraged.

http://www.utcourts.gov/opinions/appopin/pearson033006.pdf