Divorce Law Journal

Mediators Without Borders

Mediators Without Borders has perfect pitch on the timing of its launch. As we begin our annual thinking about what we can do next year to keep life meaningful and to make a difference in the wider world, please check out this wonderful new idea at Victoria Pynchon's Settle It Now BL ARG and Settle It Now Negotiation Blog.

Spencer v. Spencer

Spencer v. Spencer, 191 S.W.3d 14 (Ky.App. 2006)

Issues and Holdings:
1. Whether the trial court had personal jurisdiction over a party who had no contact with the Commonwealth of Kentucky. The Court held no, the court had no personal jurisdiction over such party.
2. Whether under KRS 403.725(1), a provision of Kentucky’s domestic violence statute, a Kentucky court may issue a protective order against an individual over whom the court lacks personal jurisdiction. The Court held yes, the court can issue the protective order, however the order cannot impose affirmative duties on the individual over whom the court lacks personal jurisdiction.

Facts:
Ava and Ken Spencer resided in Oklahoma. Ken allegedly abused Ava and their son. On May 21, 2005, Ken flew to Las Vegas. He testified that the family was planning on moving there and he went to find employment. Ava testified that she saw the trip as her opportunity to escape the abuse, and she and their son traveled to Kentucky on May 22, 2005 to stay with a close friend. On May 23, 2005, Ava filed a domestic violence petition in Warren Circuit Court. That same day, the court issued an Emergency Protective Order, which restrained Ken from having any contact with Ava and granted Ava temporary custody of their son. Ken was served in Nevada by the Sheriff’s Department.
On June 6, 2005, Ken filed a motion to dismiss for lack of personal jurisdiction. After a hearing, the court announced that it would enter an Order of Protection. When Ken’s counsel asked the court about its personal jurisdiction over Ken, the court explained that its ruling was based on KRS 403.725(1).
Ken appealed.

Analysis:
First, the Court analyzed whether the court had personal jurisdiction over Ken. The Court reviewed the three prong test set out in Wilson v. Case, 85 S.W.3d 589 (Ky. 2002): 1) whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state; 2) whether the cause of action arose from the alleged in-state activities; and 3) whether the defendant has such connections to the state as to make jurisdiction reasonable. All three requirements must be met for the court to have jurisdiction. The Court held that the trial court did not have personal jurisdiction over Ken, since none of the requirements were met.
Second, the Court examined whether the trial court may issue a protective order against an individual over whom it lacks personal jurisdiction. KRS 403.725(1) allows Kentucky residents to file for domestic violence protection, as well as similar filings by people who have fled to Kentucky to escape domestic violence. The statute does not have a residency requirement; therefore it is a safe harbor statute. The Court recognized that a conflict arises where an order is issued against a party who has no minimum contacts with Kentucky. In such cases, the due process rights of the defendant must be balanced against the state’s interests in protecting victims of domestic violence.
Since this was an issue of first impression in Kentucky, the Court reviewed case law of other jurisdictions. The Court most aligned with how the Supreme Court of New Jersey approached the issue. In Shah v. Shah, 184 N.J. 125, 875 A.2d 931 (2005), the court distinguished between a prohibitory order that protects the victim of domestic violence and an affirmative order that requires the defendant to take action. A prohibitory order enforces the protection the law allows and does not implicate the defendant’s substantive rights. An affirmative order, however, involves the court exercising its coercive power to compel the defendant to act. The court has the authority to impose the former, but not the latter, on an individual over whom the court lacks personal jurisdiction.
In accordance with the analysis in Shah, the Court held that the trial court’s order prohibiting Ken from breaking the law in Kentucky by approaching Ava or the child complied with the requirements of due process. The Court held that the remaining portions of the order, i.e. ordering Ken to attend domestic violence counseling, violated the limits of Kentucky courts’ jurisdiction. The Court vacated the order and remanded the case back to the trial court for further proceedings in accordance with the opinion.

Com., Cabinet for Health and Family Services v. C.V. et al.,

Com., Cabinet for Health and Family Services v. C.V. et al., 192 S.W.3d 703 (Ky.App. 2006)

Issue and Holding:
Whether the trial court erred in finding that the Cabinet was required to amend its permanency goal in district court prior to filing a petition for termination of parental rights. The Court held yes, the trial court erred in so requiring. However, the trial court’s order was affirmed, since the Cabinet did not meet its statutory burden of proof to terminate parental rights.

Facts:
The parents engaged in a drug-related lifestyle, and their child was committed to the Cabinet and place with the paternal grandmother. After the child continued to have unexcused absences from school, he was placed in foster care. The Cabinet’s plan was to reunify the child with the parents, however, at the hearing on the plan the district court found that the Cabinet had failed to provide services consistent with the reunification plan. Subsequently, the trial court held a hearing on the Cabinet’s petition to terminate parental rights, and the court denied the petition. The Cabinet appealed.

Analysis:
On appeal, the Cabinet argued that the trial court erred in finding that the Cabinet was required to amend its permanency goal in the district court from reunification to termination of parental rights before it filed a petition to terminate the parental rights. The Court agreed that such action was not required. Under KRS 625.090(3)(c), such a finding from the district court is not necessary.
However, the trial court made no findings that supported termination of parental rights. Therefore, the trial court’s order is affirmed.

Judge Guidugli concurs in result only.
Judge Guidugli argued that the appeal should have been dismissed under KRS 625.110, which states that the denial of an involuntary termination of parental rights cannot be appealed.

N.T.G. v. Commonwealth

N.T.G. v. Commonwealth, 185 S.W.3d 218 (Ky.App. 2006)

Issue and Holding:
Whether a juvenile court can probate a sentence of detention for a juvenile under the age of 14, when a juvenile under the age of 14 cannot be sentenced to detention. The Court held no, a juvenile court cannot probate a juvenile to a prohibited sentence.

Facts:
N.T.G. pled guilty to first degree criminal trespass, theft by unlawful taking under $300, and third degree criminal mischief. At the disposition hearing, the court sentenced the juvenile, age 13, to fifteen days in detention, probated upon certain terms, including payment of restitution and no unlawful contact with his co-defendant.
N.T.G. appealed to the Circuit Court. He argued that the juvenile court erred because 1) it failed to impose the least restrictive alternative method of treatment under KRS 630.120(4) and 2) it lacked the authority to impose fifteen days of detention on a 13 year old. The circuit court dismissed the first argument, since the least restrictive alternative method of treatment was not applicable to the facts in this case. That issue was not appealed. The circuit court rejected the second argument based on the fact that 1) KRS 645.060(2) does not prohibit a court from placing a 13 year old on probation and 2) the Kentucky Court of Appeals had previously remanded a case back to juvenile court, requiring that the court consider probation for a 13 year old.
N.T.G. petitioned the Court of Appeals for discretionary review. The petition was granted.

Analysis:
On appeal, N.T.G. argued that a juvenile court cannot probate a sentence that is cannot directly impose. The Commonwealth argued 1) that the issue was unpreserved, 2) that the disposition followed the overall intent of the juvenile code since it was imposed in the best interests of the child and directed toward treatment to bring about improvement in the juvenile, and 3) that any error was harmless since the juvenile was currently over fourteen years old.
As for the Commonwealth’s first argument, the Court held that the issue was preserved, and that even if it was not it would review the issue under RCr 10.26, the palpable error rule.
As for the Commonwealth’s remaining arguments, KRS 635.060 mandates that a juvenile court may only impose a sentence of detention upon a juvenile fourteen or older. The Court held that this statute is controlling and must be strictly enforced. A juvenile court also cannot probate a sentence of detention for a child under fourteen, because that is merely an empty threat.
The Court reversed the circuit court order and remanded the case back to district court for proceedings consistent with the opinion.

Com., Cabinet for Health and Family Services ex rel. A.W. and C.W. v. Huddleston et al.

Com., Cabinet for Health and Family Services ex rel. A.W. and C.W. v. Huddleston et al., 185 S.W.3d 222 (Ky.App. 2006)

Issue and Holding:
Whether a Family Court can require the Cabinet to maintain residence for children committed to its care in a particular county. The Court held no, the Family Court cannot intervene in the Cabinet’s placement of children.

Facts:
After petitions alleging neglect had been filed as to A.W and C.W., the children were committed to the custody of the Cabinet. At that time, the father of the children could not be located and the mother of the children was incarcerated. The children were placed with foster parents in Simpson County.
After the mother’s release from jail, she moved to Russell County. A permanency hearing was held, and the trial court ordered that the children remain in the custody of the Cabinet. It also found that the Cabinet’s plan to reunify the children with their mother was in the children’s best interests. However, the court also ordered that the Cabinet keep the children’s residence in Simpson County, more than 100 miles away from their mother.
The Cabinet filed a motion to alter, amend or vacate the portion of the order requiring it to keep the children in Simpson County, and it was denied. The Cabinet appealed.

Analysis:
The Cabinet, not the court, stands in loco parentis with regards to the children. KRS 610.010(11). The Cabinet has the sole and exclusive authority to determine the appropriate placement of children committed to its care. The court cannot intervene in the Cabinet’s placement of children. The court’s restriction on the Cabinet’s placement of the children also violated the separation of powers provision of the Kentucky Constitution.
Accordingly, the Court vacated only the portion of the trial court order restricting the Cabinet’s placement of the children and remanded the case back to the trial court for entry of a corrected order.

Unfair Agreements Coming Out Of Mediated Divorce Cases?

Katie Brophy sent the following email to me and others, which I am passing on with her permission: "At the recent KBA update, Lawyers Mutual indicated increasing claims were coming as a result of clients claiming their mediated divorce related agreements were unfair and their lawyer was to blame. Here is a draft I prepared to address the issue. Am looking forward to comments and suggestions."
The disclosure form she is working on is at the bottom of this post. Post a comment below or contact her directly for private feedback.
My two cents: Across the country we are hearing of complaints of pressure to settle. (1) Maybe it's time to combine the ADR sections of bar associations with the litigation and family law sections. (2) Not only do the mediators need CLE and brainstorming among themselves, but advocates could use some high quality CLE on negotiation and helping the mediators get the cases settled. (3) We are behind the times using evaluative mediation as the method of choice. (4) Maybe, just maybe, retired judges and active practitioners in the subject matter aren't the best we can do when selecting mediators for our cases.

S.L.T. v. R.J.C.

S.L.T. v. R.J.C., 196 S.W.3d 530 (Ky.App. 2006)

Issue and Holding:
Whether the trial court erred in issuing a domestic violence order. The Court held no, the trial court did not err because the evidence established that domestic violence had occurred and may occur again.

Facts:
The parties, never married, are the parents of one child. R.J.C, the mother, filed a domestic violence petition against the father, S.L.T., alleging that he sexually abused their child. The court issued several emergency protective orders to restrain the father from having contact with the mother or child. The court then held a hearing on both the domestic violence petition as well as a separate dependency action. At the hearing, the parties agreed to waive the hearing on the dependency action and scheduled further proceedings for a later date. However, it was noted that the initial sexual abuse allegations had been substantiated and that the investigation was still ongoing. Over the father’s objection, the court ordered him to have no contact with the child, who was to remain in the mother’s custody.
When the court proceeded with the hearing on the domestic violence petition, the father objected to any portion of the petition that contained hearsay. The court sustained the objection. The court then heard sworn testimony from the mother and a social worker. The mother testified that after she picked the child up from her father, the child immediately talked to her about the abuse, that the mother called 911 and had the child examined at a hospital, and that the mother had observed the child “hunching” things and talking about similar behavior. The social worker testified that she was present during the child’s interview and that the allegations had been substantiated. The court found that domestic violence had occurred and may occur again, and granted the DVO. The father appealed.

Analysis:
KRS 403.750 provides that a court may issue a DVO if after a hearing it finds by a preponderance of the evidence that domestic violence has occurred and may occur again. Under KRS 403.720(1) sexual abuse is included in the definition of domestic violence.
The Court found that the trial court did not base its ruling on hearsay, as the father argued. The trial court correctly based its ruling on the testimony of the mother and social worker, which adequately supported the court’s determination that a preponderance of the evidence showed that domestic violence had occurred and may occur again.
The Court affirmed the trial court’s order.

Com., Cabinet for Health and Family Services v. A.A.W.K., et al.

Com., Cabinet for Health and Family Services v. A.A.W.K., et al., 199 S.W.3d 199 (Ky.App. 2006)

Issue and Holding:
Whether the Cabinet can appeal an order denying a petition to involuntarily terminate parental rights. The Court held no, KRS 625.110 does not allow such appeals.

Facts:
The Cabinet appealed from a family court order denying its petition to involuntarily terminate the parental rights of A.A.W.K. and J.J.K. By motion of the Court of Appeals, the appeal was dismissed.

Analysis:
KRS 625.110 provides that no party may appeal a court’s decision to deny a petition for involuntary termination of parental rights. Therefore, the Court denied the appeal for lack of jurisdiction.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G., 190 S.W.3d 338 (Ky. 2006)
Issues and Holdings:
1. Whether the evidence was sufficient to terminate parental rights. The Court held yes, the evidence was sufficient.
2. Whether out-of-court statements made by a child to a therapist and pediatrician describing sexual abuse were admissible under the hearsay exception for statements made for purposes of medical treatment or diagnosis. The Court held yes, that the statements were admissible under the hearsay exception.
3. Whether the Sixth Amendment right of confrontation, as outlined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied to termination of parental rights proceedings. The Court held no, the right of confrontation is not applicable in such proceedings because termination of parental rights proceedings are civil and not criminal.

Facts:
A.G.G. and W.E.G., both mentally disabled, are the parents of two children, N.E.G. and A.E.G. The family lived at two residences, their own home and the home of the children’s paternal grandparents. The Cabinet found both residences to be unsafe and in poor condition and the children to have poor hygiene, missed school, and delayed learning. The parents ignored appointments with social workers. The Cabinet also learned that two paternal uncles, who lived primarily at the paternal grandparents’ residence, were possible sexual offenders. There was evidence that at least one of the uncles sexually abused N.E.G. at the paternal grandparents’ residence.
The Cabinet made numerous recommendations, which were adopted by the family court as a disposition order. The recommendations included regular school attendance, improved home sanitation and hygiene, and that the children have no contact with certain paternal relatives. The parents failed to comply and the children were removed to foster care. The foster mother later observed N.E.G. sexually acting out with A.E.G. and other children. After repeated failure of the parents to respond to family services, the Cabinet filed a petition to involuntarily terminate parental rights.
The family court terminated the parental rights of both parents after a two day trial. The Court of Appeals reversed and remanded for a new trial, holding that the family court admitted improper hearsay evidence in violation of the holding in Crawford v. Washington. The Supreme Court granted discretionary review.

Analysis:
First, the Court held that the evidence was sufficient to terminate parental rights. The Court found that the family court’s findings of fact were not clearly erroneous and were supported by clear and convincing evidence. The Court found that there was ample evidence that N.E.G. was sexually abused and that the parents created a risk that an act of sexual abuse would be committed on A.E.G.
Second, the Court held that the statements made by N.E.G. to his therapist and pediatrician were admissible at trial under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though the therapist was not a physician. N.E.G. made statements to the therapist regarding sexual abuse by his two uncles and father. Such statements were admissible, even though the therapist was not a physician, since the therapist testified that she intended to provide any needed therapy for the child’s mental health. N.E.G. made statements to the pediatrician regarding sexual abuse by one of his uncles. Such statements were admissible since the physician was diagnosing and treating the child for suspected abuse.
Finally, the Court rejected the Court of Appeals’ reliance on Crawford to exclude the above statements. The Court found that Crawford was not intended to apply where the Sixth Amendment does not apply, such as in civil proceedings. Since termination of parental rights proceedings are civil, not criminal, Crawford does not apply. The Court also rejected the Court of Appeals’ reliance on G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App. 1985), for the proposition that hearsay exceptions do not apply in termination of parental rights proceedings. The Court noted that it had narrowed the holding of G.E.Y to permit the introduction of portions of the Cabinet’s investigative file that would be admissible if the social worker testified in person. Thus, G.E.Y. did not preclude the introduction of the statements of N.E.G. to the therapist and pediatrician.
The Court reversed the Court of Appeals and reinstated the judgment of the family court.

Now That's An Acitve Bar Association

"The 72,000-member New York State Bar Association has listed merit selection of judges, adoption of no-fault divorce and equal rights for same-sex couples as among their key legislative priorities for 2007. " Source: The Business Review

Lane v. Lane

Lane v. Lane, 202 S.W.3d 577 (Ky. 2006)

Issue and Holding:
Whether an ante-nuptial agreement, entered into by the parties three days prior to their marriage, can be strictly enforced as written after a nine and a half year marriage and change of circumstances. The Court held no, portions of the agreement were unconscionable at the time of enforcement.

Facts:
Three days prior to their marriage, the parties entered into an ante-nuptial agreement. At the time, the wife was 29 years old, a high school graduate, and working at a hotel for $19,000 a year. The husband was a 26 year old college graduate and stockbroker, earning $166,000 a year. Two children were born of the marriage, and the wife stayed at home to care for them and the house. By the time the marriage was dissolved, nine and a half years later, the husband was earning about one million dollars a year and was a partner in a regional brokerage firm.
The ante-nuptial agreement waived the parties rights to claim maintenance if the marriage was dissolved. It also stated that the separate property of each would be deemed nonmarital in the event of divorce. The agreement specifically identified two parcels of real estate, a partnership interest in Edward D. Jones, and the husband’s pension plan, profit sharing plan, and voluntary profit sharing plan through Edward Jones as the husband’s separate property. Further, the agreement stated that if either party defaulted in or breached any obligations within the agreement, the defaulting party would be responsible for attorney fees, court costs, costs of depositions, transportation, lodging, and other related expenses.
The trial court found the portions of the agreement involving waiver of maintenance and the imposition of attorney fees on the defaulting party to be unconscionable. It also found the husband’s 401(k) plan to be marital property and divisible. The trial court ordered that the husband pay $12,000 per month in maintenance for three years. It also ordered that the husband pay the wife $59,271.08 in attorneys fees. The trial court also determined the husband’s general partnership interest in Edward D. Jones to have been acquired during the marriage and divisible. The court valued the interest at $269,876.00.
The Court of Appeals strictly enforced the agreement, reversing the trial court’s award of maintenance and the 401(k) plan. It upheld the award of attorney fees, since it did not regard the wife as a defaulting or breaching party under the agreement. It also upheld the trial court’s valuation of the husband’s general partnership interest in Edward D. Jones.
The Supreme Court granted discretionary review.

Analysis:
Ante-nuptial agreements are not per se invalid as against public policy. Yet, courts may analyze such agreements for unconscionability at the time of enforcement. A trial court may modify or invalidate all or part of an ante-nuptial agreement if enforcement would be unconscionable. Each agreement should be reviewed on a case-by-case basis. However, the more one-sided the agreement is at the time it is made, the more likely it is that courts will invalidate the agreement at the time enforcement is sought.
The Court began by noting that the agreement in the instant case not only prevented the wife from receiving the bulk of the marital estate, but also prevented her from receiving rehabilitative maintenance. It also noted that the wife’s staying home to raise the children and maintain the household should be a substantial factor, along with the affluent standard of living during the marriage, towards rendering the waiver of maintenance under the agreement unconscionable.
The Court reinstated the trial court’s award of maintenance, since the court made appropriate findings of fact to support its ruling that the maintenance waiver was unconscionable. The Court also affirmed the trial court’s award of attorney’s fees, since the award of such fees is within the broad discretion of the trial court. Although, the Court remanded the case back to the trial court to determine whether additional fees should be awarded for costs incurred during the appellate process. The Court also affirmed the trial court’s and the Court of Appeals’ valuation of the husband’s general partnership interest in Edward D. Jones. Finally, the Court did not address the merits of whether the husband’s 401(k) should be marital property, since the wife did not preserve the issue for review.
Accordingly, the Court affirmed in part, reversed in part and remanded the case back to the trial court for further proceedings.

Justice Graves concurred in a separate opinion.
Justice Graves agreed with the majority opinion, but wrote separately to address social policy concerns involving ante-nuptial agreements. He argued that ante-nuptial agreements tend to promote marital instability. He also took issue with the fact that women are often treated unfairly by ante-nuptial agreements. As in the instant case, where under the agreement the wife was to receive the mere satisfaction of bearing two children and the privilege of being a wife, while the husband walked away with the family’s fortune. Justice Graves argued that more emphasis needs to be placed on the contributions made by homemakers to the marital property.

Justice McAnulty dissented.
Justice McAnulty argued that the agreement should be strictly enforced. He stated that the agreement was not unconscionable, just a bad bargain on the wife’s part. He believed there was a lack of evidence that the marriage forced the wife to forego the completion of her education. Since the parties signed the agreement with the advice of independent counsel, it should be fully enforced.

Jurisdiction to Modify and Enforce Child Support

In an opinion rendered today which is designated to be published, but not yet final, the Kentucky Court of Appeals held KY lacked jurisdiction under the UIFSA to modify support as neither parent nor the child resided any longer in KY, but retained jurisdiciton to enforce its judgment as to arrearages. Gibson v. Gibson.

Crouch v. Crouch

Crouch v. Crouch, 201 S.W.3d 463 (Ky. 2006)
Issue and Holding:
Whether order stating that the mother had been called to active military duty and that the parties agreed the child would reside with the father “until further orders of the court” is a temporary order or permanent modification of a joint custody order. The Court held that the order was only a temporary order.

Facts:
When the parties divorced in 1996, the parties agreed, and the trial court ordered, that they share joint custody of their one minor child. The mother was granted physical custody. In 2003, the mother, a member of the Kentucky National Guard, was called to active duty and given 72 hours notice. The mother had to make quick decisions regarding custody. The parties agreed that the child would live with her father for the duration of the mother’s active duty, but return to the mother after her duty was complete. An agreed order was entered, drafted by the father’s attorney, which stated that the child would reside with the father “until further Orders of the Court.”
The mother was not deployed overseas, but was mobilized and sent to Fort Knox for one year. During this time, the mother visited her child on several occasions. In 2004, the mother contacted the father and told him that her active duty had been served, but that she had been accepted to a four month Officer Training School. The parties agreed that the child should stay with the father while the mother attended the training, as it would be less disruptive for the child to finish at out the school year in one place. The parties intended to transfer custody back to the mother during the summer.
After the mother completed her training in the summer, she contacted the father to arrange resuming custody of the child. The father refused to transfer custody and told the mother that she would need a court order to enforce their agreement.
The mother then petitioned the court to enforce the 1996 permanent custody order. The trial court conducted a hearing and found that it was in the best interests of the child to remain with her father. The trial court noted that the best interests of the child standard must prevail over the mere enforcement of a contract between parties.
The Court of Appeals found that the 2003 order was a temporary order and not a modification of the 1996 permanent custody order.
The Supreme Court granted discretionary review.

Analysis:
The Court found the 2003 custody order to be ambiguous. While the phrase “until further orders of the court” could be interpreted to denote a permanent order, it could also be interpreted to indicate that the court will transfer custody back to the mother upon completion of active duty. Ambiguity also exists because the order lacked any findings of fact or reference to the 1996 permanent custody order being modified. As such, the Court looked to and relied upon the intent of the trial court in entering the 2003 order for interpretation. The Court found that the trial court’s intent was to effectuate the intent of the parties, and that the parties’ intent was for the order to be temporary. Accordingly, the Court affirmed the Court of Appeals’ decision.
The Court briefly noted that their interpretation of the 2003 order is consistent with the new statute KRS 403.340(5). The new statute is not controlling in the instant case, but directly addresses the issue of custody when a parent is a member of the military and called to active duty.

Justice Scott dissented. Justice Roach joined.
Justice Scott argued that the 2003 custody order plainly modified the original custody agreement entered in 1996. The trial court correctly held a custody hearing and determined that it was in the best interests of the child to remain with her father after the mother completed active duty. There was nothing in the 2003 order which stated that the child would automatically return to live with her mother after the mother’s active duty was complete. Such a term, which requires speculation as to future circumstance, would have been inappropriate since the best interests of the child must always be considered. Moreover, the trial court was not clearly erroneous in its findings of fact nor did it abuse its discretion. Therefore, the trial court ruling should have been affirmed.

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

Stratton v. Commonwealth

Stratton v. Commonwealth, 182 S.W.3d 516 (Ky. 2006)
Issue and Holding:
Whether the Cabinet for Families and Children is protected by the doctrine of governmental immunity from suit. The Court held yes, since the Cabinet’s investigations into allegations that a child was abused and its subsequent actions were discretionary, there was no waiver of immunity and the Cabinet was protected by the doctrine from father’s suit alleging negligence.

Facts:
Sabrina Stratton died May of 1994 from injuries inflicted by her mother’s live-in boyfriend, Sherman Davis. The Cabinet was first notified of possible physical abuse of the deceased by her maternal grandmother. The same day a case worker and detective interviewed the child, her grandmother, her mother, and Davis. Her mother tried to explain away the injuries and Davis denied any wrong doing. A doctor examined the child and found that the injuries were too severe to have resulted from innocent falls. Thus, the case worker was able to substantiate the allegations of abuse, but could not identify the perpetrator.
The case worker filed a petition with the family court, alleging physical abuse of the child and the mother and Davis as the alleged perpetrators. At an emergency hearing, the mother and the child’s natural father, Stratton, agreed that Stratton should be granted temporary custody while the mother attended court ordered parenting classes. The case was then transferred to “ongoing” case worker.
At the next court hearing, the mother blamed the maternal grandmother for the abuse. Thereafter the maternal grandmother was limited to supervised visitation once a month. The child was then returned to the custody of her mother based on agreement of the parties and the court. Less than a month later the paternal grandmother called the abuse hotline to report noticeable facial injuries to the child. The CPS employee who took the report concluded that there was no information that would indicate anything other than an accidental injury. The case worker followed up with a home visit two days later, and both the child and her mother blamed the injuries on an accident. Four days later the child died as a result of those injuries.
Stratton, administrator for the child’s estate, filed suit against the Cabinet in the Board of Claims. Stratton alleged that the Cabinet’s negligence contributed to the death of the child. He argued that if the CPS employees had followed mandatory regulations and interviewed certain witnesses, they would have learned and substantiated that Davis was the abuser.
The Board of Claims dismissed the action based on governmental immunity, holding that the interviews were not ministerial or discretionary, but fell within KRS 44.073(13)(d) and (e) and that the Cabinet could not be held liable under traditional negligence theories. The Franklin Circuit Court rejected the Board’s interpretations and held that the Cabinet’s acts were ministerial and therefore governmental immunity was waived. The Court of Appeals reversed the circuit court, finding the Cabinet’s acts discretionary.
The Supreme Court granted discretionary review.

Analysis:
The Court noted that the Cabinet, as an agency operating under the direction and control of state government, is entitled to governmental immunity unless the immunity has been explicitly waived. The Board of Claims Act offers a limited waiver of governmental immunity regarding negligence claims filed with the Board. The waiver extends only to negligence claims involving ministerial acts, acts in which the agency has no discretion.
The applicable regulations in the instant case are outlined in section seven (7) of 905 KAR 1:330. The ministerial duties mandated by the regulations in this case were satisfied by the CPS case workers. Performing collateral interviews of individuals not mandated by the regulations was in the discretion of the case worker and therefore their decisions regarding those interviews are not actionable. Discretionary functions are protected by the doctrine of governmental immunity and do not fall under the limited waiver.
Thus, the Court affirmed the decision of the Court of Appeals.

Rayborn v. Rayborn

Rayborn v. Rayborn, 185 S.W.3d 641 (Ky. 2006)
Issue and Holding:
Whether the circumstances of the parties brought about by the entry of the divorce decree and maintenance obligation can serve as the basis of the “changed circumstances” required by KRS 403.250 to allow modification of the maintenance award. The Court held no, the parties circumstances at the time of the decree and maintenance obligation are the status quo against which the changed circumstances requirement of KRS 403.250(1) is to be measured.

Facts:
Paul and Exie Rayborn were married for 25 years. Exie filed a petition for dissolution of marriage, and Paul did not respond. The trial court entered a default decree, wherein Exie received most of the personal marital property, including their mobile home, and Paul was assigned to pay the marital debt, except for the debt remaining on the mobile home. The parties owned a one-half interest in a 44-acre farm, which was not disposed of by the decree. Since Paul was a self-employed truck driver and Exie was disabled, the court also ordered Paul to pay $500.00 a month in permanent maintenance.
Following the divorce, Paul purchased the other half of the farm from a third party, sold the land, and gave Exie her share of the marital proceeds, $47,000, as well as the one acre where her mobile home was located. Paul received $153,615.51 from the sale of the farm.
The same year, Paul moved the court to terminate his maintenance obligation under KRS 403.250. The trial court granted the motion, finding that there had been a showing of changed circumstances sufficient to make the provisions and terms of the maintenance obligation unconscionable. The trial court noted that Exie’s standard of living had increased significantly since the marriage, due to the maintenance that she received. It also noted that Paul’s income had decreased significantly and that the sale of the farm constituted changed circumstances. Finally, it noted that the original decree was defective because it did not contain requisite findings of fact.
The Court of Appeals reversed, holding that the trial court’s findings were only conclusory and not supported by facts. The Supreme Court granted discretionary review.

Analysis:
KRS 403.250 requires that the changed circumstances occur after the divorce decree and maintenance obligation become effective. However, the changes noted by the trial court were the product of the divorce decree and maintenance obligation. Exie’s income had increased, due to the maintenance she received. Paul’s income had decreased, due to the maintenance that he paid. Although, the Court noted that Paul’s income might have actually increased overall, if calculated before maintenance was deducted. The Court also attributed the sale of the farm to merely a distribution of property that should have occurred as part of the original decree. The Court also pointed out that the proceeds from the sale actually improved Paul’s overall financial position. These changes brought about by the divorce decree and maintenance obligation cannot serve as the basis of the “changed circumstances” required by statute. Otherwise, every maintenance obligation could be immediately modified under the statute.
Finally, the Court acknowledged that the original decree was, in fact, defective. It did not dispose of the entire marital estate or contain requisite findings of fact. However, the Court held that those defects are to be raised in a direct appeal of the decree. Those defects cannot serve as a basis for a later action to modify the maintenance obligation.
Accordingly, the Court affirmed the decision of the Court of Appeals and remanded the case to the trial court for proceedings consistent with the opinion.

Collaborative Law Well Received By Young Lawyers

New article about Collaborative Divorce, in ABA Young Lawyers Division newsletter, summarizes key features of this important new divorce process and Want to know what young lawyers are saying about collaborative divorce? are two new posts by Pauline Tessler in at Family Law News Blog.
Also see Collaborative Divorce - A Team Approach to Divorce from Grant Griffiths in Kansas.

Covenant Marriage Bill Pre-filed

Bluegrass Reports notes that a covenant marriage bill (BR409) has been pre-filed in the Kentucky legislature. Check out the lively comments. Thanks to Michael O'Dell Walker for directing me to this post.

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.

Thomas Jefferson Would Have Had a Blog

Ben Cowgill's Legal Ethics Newsletter posted some jewels about internet journalism, Law-related blogs: following in the footsteps of Thomas Jefferson:
If Thomas Jefferson were alive today, there can be little doubt that he would have a law-related blog. He loved to write. He loved to share information and ideas with other people. He once said that he would rather have a country with newspapers and no government than a country with government and no newspapers. He would be thrilled to live at a time when he could share information with interested people throughout the world, simply by sitting down at his desk and writing at a keyboard.
'The legal profession has a great tradition of writing and speaking about the law. Law-related blogs are merely a new example of that great tradition. Until the Internet came along, lawyers had to find other ways to share information about the law: by writing books, articles and op-ed pieces; by making presentations at legal conferences; and by speaking to church groups, civic clubs and the like. All of those activities are valuable because they all spread information about the American legal system to the American people. Now, with the Internet and "blogging software," it's possible for lawyers to continue that tradition in another way, and so it is not surprising that many lawyers are choosing to do so. They are following in the footsteps of other lawyers who have been writing and speaking about the law throughout American history." ...

Adoption News Story Much Meatier Than Headline Suggests

"Kentucky looks to speed up adoptions", is the Courier-Journal front page headline reporting on the Blue Ribbon Panel on Adoption meeting in Frankfort yesterday. The online edition link to today's article was not yet available at the early hour of this posting. What an informative and productive meeting it appears to have been. Kentucky State Auditor Crit Luallen, a potential 2007 gubernatorial candidate, presented the results of an audit showing that children removed from homes because of abuse and neglect are waiting for adoption on average three years, longer than permitted by federal guidelines. The year long study makes no conclusions as to whether children are removed too hastily from homes, the issue that caused the panel to be formed in the first place. Mark D. Birdwhistle, chair of the panel stated that there are "pockets of problems" and acknowledged the need to have consistent standards across the state.
Many thoughtful and much needed ideas are being floated to this influential panel and discussed which is very welcome news. For example, yesterday auditor Luallen made recommendations for speeding up the three year wait for the 2000 children currently available for adoption, including creation of a birth father registry. We have reported on such a registry here and announced some new scholarly articles on these issues here.
Chief Judge, Jefferson Circuit Court, Family Division Stephen George and Family Court Judge Patricia Walker FitzGerald also presented to the panel the need for Guardians Ad Litem to be fairly paid and the need for attorneys to be appointed to represent parents at the initial temporary removal hearing. Judge George also said removing the confidentiality requirements of current law in dependency cases would make the family courts more accountable.
UPDATE: Here's the link to the Courier-Journal article by Deborah Yetter.

Improper Factors in Calculating Maintenance

From The Family law Prof Blog: "The Supreme Court of Connecticut has affirmed the court of appeals ruling in a case in which a couple were married for 11 years, lived together for a number of years and then remarried for six years." (See Family Law Prof Blog post of February 10, 2006) "The court of appeals had found that the trial court, in fixing the term of the maintenance award, improperly took into consideration both the prior marriage and cohabitation and the fact that there were adult children with grandchildren residing in the house."
"The court concludes that 'length of the marriage' criterion prescribed in [statutes governing maintenance awards], as a matter of law, does not include prior marriages or cohabitation preceding the marriage."
My tech learning curve stopped at posting .pdf docs. so here's the not so pretty link to the opinion:http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR280/280cr8.pdf. Maybe early next year I can find a little time with a fire blazing in the fireplace to putter with the tech stuff, much like earlier this year when I gave this site a soft launch.

First coaches for lawyers, now coaches for the clients of the lawyers

First coaches for lawyers, now coaches for the clients of the lawyers is the title of a post from Idealawg.
"Most of us are familiar with the idea of lawyers hiring coaches to help them with goals in business development or time management or career navigation. But how about clients hiring coaches to help them through the legal process? Clients are hiring coaches in Memphis: Attorneys refer clients to divorce coaches for guidance on smooth ending to marriage (subscription may be required)."
"[A] new trend in divorce law borrows from the emerging practice of executive coaching to help guide both parties through the process, if not more amicably, then more efficiently."
"For four years, family lawyer Miles Mason of Crone & Mason has recommended coaches to his clients. Divorce coaches are typically mental health professionals but they do not act as therapists nor, of course, do they give legal advice."
"The word coach (is used), in terms of going to a professional that has expertise in a particular area of life, is a trend," Mason says. "These days people have more money, they recognize weakness more, value good advice and are generally more self-aware. People understand if you pay a little more for some good advice, you can avoid some common pitfalls."
Locally we use often use coaches in interdisciplinary collaborative divorce practice. It will be interesting to see if the practice takes hold in litigated cases. Mental health professionals can serve a valuable role in keeping the client's actions consistent with his or her goals in litigation, and clients may get better value for their dollars having a mental health pro doing the hand-holding through the process.

Uniform State Laws Research Tip

The National Conference of Commissioners on Uniform State Laws has a valuable website for legal research, www.nccusl.org, to which all the uniform acts are posted, as is the legislative history of each of the acts by state, and all the comments to the uniform acts. I learned of this on the ABA Family Law Section listserve, where the discussion concerned whether one state, when modifying child support, could extend the support beyond the age of majority of the original state issuing the first order. The child support "Goddess", Laura Morgan, who knows everything there is to know about child support, informed us that all you have to do is pull up the comments to UIFSA at and search for the word "successive," and you will find that the answer is quite clearly no. The legislature declares the public policy by enacting a uniform law, and the courts may not declare a contrary public policy, so the erstwhile decisions in New Jersey and New York are off base. Now you know how to find the comments to the Uniform Laws.
And, speaking of Uniform Laws, I had heard The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act was approved by the NCCUSL. I am please to now post the link to it.

The Child Custody Issue Needs To Be Remanded For A New Trial But it Would Be A Great Case For Discretionary Review On The Goodwill Issue: What Will Retired Justice James E. Keller Do?

Gaskill v. Robbins, NO. 2005-CA-002088-MR, http://opinions.kycourts.net/coa/2005-ca-002088.pdf, was decided December 8, 2006 in an Opinion Reversing and Remanding which is designated to be published. The custody determination and business value determined by Warren Family Court Judge Margaret Ryan Huddleston were reversed and remanded for a new trial.
The trial court rejected any valuation which excluded any goodwill stating that “there is no reported legal authority for the distinction in goodwill” (personal v. enterprise). “To the contrary, it is generally accepted in Kentucky that the goodwill of a closely held corporation should be assigned value in a dissolution proceeding,” citing to Drake v. Drake, 809 S.W.2d 710 (Ky.App. 1991), Clark v. Clark, 782 S.W.2d 56 (Ky.App. 1990), and Heller v. Heller , 672 S.W.2d 945 (Ky.App. 1984), in support of this proposition.”
The Court of Appeals noted “While we acknowledged that ‘the goodwill contained in a business should be considered when arriving at the value of a practice,’ Id. at 55, citing Heller, 672 S.W.2d at 947 (Emphasis added), we rejected the argument that Heller held that all businesses have goodwill. Id. Consequently, we upheld the trial court’s decision to not include an amount for goodwill in valuing the appellee’s medical practice, concluding that the trial court’s decision was supported by substantial evidence, Id. at 56.”… The question therefore arises as to whether the court gave appropriate consideration to the issue and properly exercised the discretion afforded to it in matters of valuation. See Clark, 782 S.W.2d at 60, citing Platt v. Platt, 728 S.W.2d 542 (Ky.App. 1987). We believe that it did not. As the court was laboring under the misconception that providing a value for goodwill was compulsory in reaching its decision, we believe that it cannot be said that the court exercised its discretion appropriately.”
Here is the meat of the decision on this issue:
“After considering the issue and the facts of this case, we are not inclined to deviate from long-standing precedent by creating a wholesale change of law holding that “personal” and “enterprise” goodwill should be distinguished for purposes of property evaluation in a divorce proceeding – even given that Gaskill’s practice is a sole proprietorship. Issues of stare decisis aside, we believe that “[i]t would be inequitable to hold that the form of the business enterprise can defeat the community’s interest in the professional goodwill. Such a result ignores the contribution made by the nonprofessional spouse to the success of the profession ….” Mitchell v. Mitchell, 732 P.2d 208, 211 (Ariz. 1987).”
The problem in the facts before the Court of Appeals in this case was that the non-professional spouse was actively involved in the business. So, while the contributions of the non-professional spouse may be quite relevant to the facts of this case, they usually are not. I agree with Senior Judge Lewis G. Paisley, sitting as Special Judge, who stated in his Concurring Opinion “I believe she makes a compelling case that ‘personal’ goodwill should not be considered marital property to be divided between the parties. I believe, however, that this is a matter to be addressed to our Supreme Court.”
So now what will retired Justice James E. Keller, counsel for appellant on appeal, do next? He won a reversal and new trial for his client on the child custody issue because the trial court relied on hearsay, and he won on the ruling that the court should have considered introduction of a prior inconsistent statement made by a psychologist to another psychologist. I cannot ever recall seeing a party asking an appellate court to bifurcate issues, but it sure would be nice if he could take the Court of Appeals ruling back to the trial court for the new trial on the custody issue, yet file a motion for discretionary review in the Kentucky Supreme Court on the goodwill issue. The timing would be pure gold in that the Kentucky Supreme Court recently accepted discretionary review in another divorce case involving goodwill.

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.

Blended Families

There is always much printed this time of year about the stress of the holidays. The December 11, 2006 Time Magazine article A Better House Blend is an interesting article on this theme. “Holidays can be complicated for any family, but when children, stepchildren and new spouses are involved, things can get really crazy.” The meat of the article is the research showing that it takes 4 to 7 years for a blended family to knit together. “Children under age 8 blend the fastest, and those between 9 and 11 the slowest, says Sandra Marcias, a professor at the Pacific Graduate School of Psychology in Palo Alto, CA.”
I was also fascinated to read that the Rosen Law Firm in Raleigh, NC has a life transition counselor on staff. We lawyers listen to our clients' angst but they get better for their dollars by talking with a mental health professional. As family law firms morph from solo or small firm practice to larger groups of family lawyers practicing together, I suspect we will see more movement toward interdisciplinary teams.

Mediator Abuses In Family Law

Victoria Pynchon has requested comments to her post, Mediation Abuses in Family Law. I see the problem frequently. Check out her post and let her hear from you! In browsing her ADR site and her negotiation site, Settle It Now Negotiation Blog, you'll no doubt stumble upon some info that will make you wonder haw you could have practice law without it. Subscribe to the feeds and you'll regularly receive some of the best CLE on the net. I wish it were required reading for all mediators.

All Your Favorite Love Songs, Divorce Style

A comment from a reader, Billy Riggs, lead us to Divorce Tunes and these very funny parodies:
"To All The Girls I Could Have Loved"
"Only You, That's All You Think Of"
"The Winds Between My Cheeks"
"Are You Loathsome Tonight"
"You Clog Up My Senses"
"You Dried Up My Life"
"I'm Gonna Hate You Forever"

Comments on Unbundling Legal Services

It is much more interesting to post articles when they stimulate some discussion. The Legal Profession Blog, a member of the Law Professors Blog Network posted the following (you'll have to go to their article to hit their links):
"Update on Limited Representations: "Unbundling" Discrete Legal Tasks
As a follow-up to our posts here and here on "unbundling" and various states' movements toward limited representations, consider this ABA Journal eReport story on the Massachusetts pilot project for family courts we previously noted here. The Louisville, Kentucky blogger Divorce Law Journal urges here that her state consider such a status, especially in divorce court: "Sounds like a promising solution to the courts being overwhelmed with unrepresented litigants," she writes. This was written by Professor Alan Childress at Tulane Law School.
Some of the comments posted to the post Unbundling Legal Services:
"Diana, it sounds like a great way to get sued to me. If there were some sort of qualified immunity built in, then it might work - but then there is another problem.
I can say that I'm tiring of the emphasis on whether the poorer members of the public get good service at a cheap price. Most practitioners need to make money at some of the "gimme" stuff just in order to make a living and maintain the facilities and staffing that litigants need to be available on the hard issues. This would be something that would make a frequently emotionally difficult living even harder. The problem with the proposed a la carte system is that while it might benefit an individual litigant on a short term basis, it will add stress to those who practice in the middle income tiers, in that it will ultimately drive up rates across the board (not to mention the repairs we'll have to accomplish when they

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.

Storm v. Mullins, 199 S.W.3d 156 (Ky., 2006)

Storm v. Mullins, 199 S.W.3d 156 (Ky., 2006)

Issues and Holdings:
1. Whether the consent to custody form, signed by the mother, was sufficient to establish the mother’s consent to the paternal grandparents’ adoption of the children. The Supreme Court held that such form was not sufficient.
2. Whether the one-year statute of limitations period for challenging an adoption, set out in KRS 199.540(2), applied to the mother’s motion to set aside the adoption based on lack of consent and notice. The Supreme Court held that the statute of limitations barred the mother’s challenge based on lack of consent. However, the Court found the record inconclusive as to whether the notice requirement had been met, and remanded the case back to the trial court for further proceedings.

Same-Sex Custody Jurisdiction

In an important decision last week, Janet Miller-Jenkins v. Lisa Miller-Jenkins, the Virginia Court of Appeals held that Virginia must give full faith and credit under the federal Parental Kidnapping Prevention Act to a custody determination made by a Vermont court growing out of a Vermont civil union. The opinion determined that DOMA did not create an exception to the PKPA and that both statutes must be given effect.

Com., Cabinet for Health & Family Services ex rel. M.H. v. R.H., 199 S.W.3d 201 (Ky.App., 2006)

Com., Cabinet for Health & Family Services ex rel. M.H. v. R.H., 199 S.W.3d 201 (Ky.App., 2006)

Issue and Holding:
Whether the doctrine of issue preclusion applied to bar the Cabinet from introducing evidence of prior sexual abuse perpetrated against siblings of the infant by the parents at an adjudication hearing regarding the removal of the infant from the parents’ custody. The Court held that the doctrine did not apply.

Facts:
The Cabinet filed a juvenile dependency, neglect, and abuse petition on behalf of M.A.H., an infant, on January 5, 2005. The petition claimed that the infant was at risk of harm due to a history of “substantiated sexual abuse, physical abuse, and neglect as well as . . . domestic violence.” On March 4, 2005, the Cabinet filed a notice of intent to introduce evidence of the removal of the infant’s seven siblings from the parents’ custody at the adjudication hearing. In response, the parents claimed that the Cabinet was barred from doing so under the doctrine of res judicata. The family court agreed and prohibited the Cabinet from introducing evidence of sexual abuse of the infant’s siblings by the parents. The court then found that the Cabinet failed to meet its burden of proof and dismissed the petition. The Cabinet appealed.

Analysis:
The Cabinet argued on appeal that the family court erred by excluding evidence related to the removal of the infant’s siblings following a substantiated claim of sexual abuse perpetrated against at least one of them.
The Court noted that the Cabinet had a long history of involvement with the family and that the Cabinet had been granted permanent custody of the child’s siblings in February 2004. The Court found that the family’s long history of abuse and neglect was relevant to the instant adjudication proceedings.
The Court held that the elements of issue preclusion had not been established in the instant case. While the issue of sexual abuse of the child’s siblings was identified in the adjudication proceedings of both the siblings and the infant and the issue was litigated in the siblings’ adjudication proceeding, the issue was not actually decided in the siblings’ adjudication proceeding. During the first proceeding, the court declined to name the perpetrator of the sexual abuse because it believed that the identity of the offender was not essential to the proceeding. Therefore, the Court held that the Cabinet is not barred from introducing evidence that might identify the father as the perpetrator of the prior sexual abuse, noting that this evidence is “highly relevant” to determine whether the infant is an abused or neglected child.
The Court vacated the pretrial order barring the introduction of the disputed evidence and the order dismissing the original petition. The Court also remanded the case for an adjudicatory hearing.

A Number of Interesting Divorce Law Posts

Janet Jangjhar's Florida Divorce Law Blog has a number of very interesting recent posts:
A Close-up Look at Routine Bans on Travel with Children of Failed Relationships
Is There Such a Thing as Gay Divorce Outside Massachusetts?
It’s Never Too Late to Divorce - Well, Almost
Fraud Must Be Proved When It Comes to Claims of Hiding Assets
Digital Evidence Gets Hot in Divorce - Maybe Too Hot

Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006)

Denzik v. Denzik, 197 S.W.3d 108 (Ky., 2006)

Issues and Holdings:
1) Whether the complaint, alleging fraud, was sufficient to give the defendant adequate notice of the claims against her. The Court held that it was sufficient.
2) Whether the statute of limitations barred the former husband’s claim. The Court found that it did not, since the fraud was ongoing.
3) Whether the evidence was sufficient to establish that the former wife intentionally deceived the former husband as to the paternity of the child born during their marriage. The Court held that the evidence was sufficient.

Facts:
The parties were married from 1981 to May of 1984, as well as from December 1984 to March 1990. In June of 1987, the former wife, now Blazar, gave birth to a daughter. Upon their divorce in 1990, the husband, Denzik, was ordered to pay child support for the one child. Blazar was awarded custody subject to regular visitation by Denzik. In September 2000, Blazar told Denzik that the child was the product of an affair with a former boyfriend. Blazar requested that the former boyfriend undergo a DNA paternity test, which revealed that the child was the former boyfriend’s, not Denzik’s. Denzik then obtained a termination of child support obligations and filed a civil action, requesting damages for the fraudulent misrepresentation of the paternity of the child.
At trial the jury found Blazar guilty of fraud and awarded Denzik damages, totaling $54,720.26. The damages represented the child support payments that Denzik had paid for the last five years. The Court of Appeals reversed the jury verdict. The Supreme Court granted discretionary review.

Analysis:
First, the Court held that the complaint was sufficient, under CR 9.02, to give Blazar adequate notice of the claims against her. The testimony at trial demonstrated that Blazar understood the nature of the claims.
Second, the Court held that since it found that fraudulent misrepresentation occurred in the instant case and that the fraud was ongoing, the conduct of Blazar came within the applicable statute of limitations, set out in KRS 413.130(3). The Court noted that Denzik only sought to recover the last five years of his support payments.
Third, the Court held that the evidence was sufficient to support the jury’s verdict and award for fraudulent misrepresentation. The Court pointed to the fact that 1) Denzik had received a call, during the pregnancy, accusing Blazar of an affair and Blazar affirmatively denied the affair, 2) Blazar should have known that it was more likely that Denzik was not the father due to her having had intercourse more often in the affair than with her husband near the time of conception, and 3) the concealment of the affair afforded Blazar financial gain in the divorce by her receiving child support. Moreover, the Court believed the jury was in the best position to determine the credibility of Blazar’s claim of surprise discovery that the child had a different father than Denzik. The Court held that it was error for the Court of Appeals to substitute its judgment in place of the jury’s.
The Court reversed the decision of the Court of Appeals and reinstated the jury verdict.

Justice Lambert’s dissent focused on the policy involving the presumption of legitimacy of a child born in wedlock, which he believed to be of the utmost importance. He argued that the relationship between a parent and child should not have a price tag placed upon it and that some secrets should remain secret. Moreover, he feared that the majority’s opinion would open the floodgates of litigation on the paternity of children in Kentucky and would provide incentive for the destruction of parent/child relationships.

Justice Johnstone’s dissent agreed with Justice Lambert’s opinion and endorsed the rationale of the Court of Appeals in reversing the jury verdict. Justice Johnstone did not believe that Denzik produced any evidence of intentional fraud on behalf of Blazar

Back Dating Stock Options

Many corporations are feeling the heat and have been in the news for back-dating stock options. This Forbes article posits that the issue may have a gnarly impact on such options in the event of divorce. It doesn't suggest solutions, but sometimes the important thing is to be aware that there may be a problem so your expert can make that part of the analysis.

Unbundling Legal Services For Pro Se Litigants

Pro Se divorce litigants are increasing common in family courts, approaching 70% of cases in some areas. The Jefferson County Kentucky Family Court and Louisville Bar Association are assembling forms for these litigants to use. Law.com reports that two Massachusetts family courts are experimenting with lawyers providing limited representation. "Litigants who might have appeared before the court pro se now have the opportunity for limited representation, or unbundled legal services. The Supreme Judicial Court of Massachusetts issued an order in the Hampden and Suffolk divisions of the Probate and Family Court allowing lawyers to represent clients on a limited or one-time basis rather than throughout an entire case." Sounds like a promising solution to the courts being overwhelmed with unrepresented litigants.