Divorce Law Journal

Caskey v. Caskey, Ky COA, Modification of Primary Residence

Caskey v. Caskey, 2010-CA-000667-ME

Issue:  Modification of Primary Residential Parent

Published:   Reversing and Remanding

County: Wolfe

After Child was attacked by a third party while in Mom’s care, Dad filed a motion for an Order modifying primary residential parent from Mom to him and changing fifty-fifty timesharing to standard visitation schedule.  TC denied the Order and Dad appealed pro se. 

 FACTS:

Per divorce settlement agreement, Mom and Dad shared joint custody of 6 year-old Child.  Parents equally divided parenting time but Mom was designated as primary residential parent.  Two and a half years later, Mom’s best friend was driving with Mom in the front seat of the car and Child and best friend’s boyfriend in the back seat.  Best friend’s boyfriend struck Child in the throat and attempted to choke her.  Mom did not take Child for medical treatment until almost midnight the following day.  When Dad picked up Child the next day, Child still had bruising on her chest and throat and hemorrhaging around her eyelids and mouth.  Best Friend’s Boyfriend was criminally charged for the assault, and Mom was charged criminally for failure to report the assault.  Dad filed a Motion for an Order modifying primary residential parent from Mom to him and changing fifty-fifty timesharing to standard visitation schedule (every other weekend plus one time during the week.)  At the hearing on the Motion, Mom pled the Fifth but testified that she did not learn of the attack until the day after it occurred. 

 TC noted that while Child “may not have been exemplarily monitored” by Mom, Child was not in danger in Mom’s care; TC therefore denied Dad’s motion.

ANALYSIS:

CA noted that the modification of designation of primary residential parent should be decided based on the best interests of the child.  CA held that the undisputed facts were more than sufficient to show that it was in Child’s best interests for Dad to be designated primary residential parent, with whom Child should live.  CA noted that a trial court’s determinations as to visitation and designation of primary residential parent will not be reversed unless they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case, but that this case is one of those rare exceptions. CA noted that TC’s referral of the case to the Cabinet for investigation and monitoring contradicted TC’s finding that Child was not endangered in Mom’s care. 

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

One Published Family Law Opinion from Ky Court of Appeals Last Week

Caskey v. Caskey, Ky Court of Appeals reversed denial of father's motion for primary residence where child had been assaulted in mother's presence. Digest to follow.

No Published Family Law Opinions from Ky Court of Appeals Today

Harrison v. Leach, Ky. S. Ct., Waiver of Standing, Right of Non-Parent to Seek Custody Not Addressed

Harrison v. Leach, 2010-SC-000018-DGE

Published:  Vacating and Remanding

County:     Estill

      Because the issue of standing, which can be waived, is distinct from the issue of subject-matter jurisdiction, the Supreme Court held that an appellate court cannot, sua sponte, resolve an appeal based on a lack of standing before the trial court when no party had raised the issue of standing in the proceedings below.

     The Appellee, Christopher Leach, and his wife, Emily, had three children.  As a result of allegations of dependency, neglect or abuse, a family court awarded temporary physical custody to the Appellants, the maternal grandparents of the children.  When the grandparents petitioned a circuit court for full custody, the issue was referred to a domestic relations commissioner.  (The trial court where the custody action arose does not have a family court.)

    The parties stipulated that the grandparents did not qualify as de facto custodians.  Even though KRS 403.420 had been repealed, the DRC stated that “the right of a non-parent to initiate a custody action in Kentucky is set forth in KRS 403.420(4)(b).”  The DRC concluded that Emily abused the children and Christopher failed adequately to protect them, but found the evidence insufficient to establish that Christopher was an unfit parent.  The DRC recommended that Christopher be granted sole permanent custody of all three children.

     The Harrisons filed exceptions to the DRC report and the trial court ultimately rejected the DRC’s conclusions and awarded permanent sole custody of the children to the Harrisons.  Christopher appealed to the Court of Appeals.  Acting on its own motion, the Court of Appeals concluded that repeal of KRS 403.420 meant the Harrisons lacked standing to seek custody and the trial court lacked subject matter jurisdiction to determine the Harrisons’ custody action.  The Court of Appeals vacated the trial court’s order and remanded the case to the trial court with directions to dismiss the custody proceedings.

     The Supreme Court granted the Harrisons’ motion for discretionary review to determine whether an appellate court may act upon its own motion to decide an appeal based upon a purported lack of standing of one of the litigants.  SC concluded that standing is distinct from subject matter jurisdiction and a party may waive a right to contest standing.  Thus, an appellate court may not, on its own motion, raise the issue of standing of one of the parties to the appeal and adjudicate the appeal on grounds of standing when no party has questioned another party’s standing.

      “Standing” is defined as “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.”  Although the Harrisons clearly had an interest in the custody of the children, in the CA’s view, the repeal of KRS 403.420 left the Harrisons without a statutory mechanism to seek custody.  The CA believed that lack of standing caused the TC to lack subject matter jurisdiction.

      In its analysis, the SC explained that standing and lack of subject matter jurisdiction are not synonymous.  Subject matter jurisdiction involves a court’s ability to hear a type of case and standing involves a party’s ability to bring a specific case.

     The SC further concluded that Christopher had waived any issues related to standing; it was error for the CA to inject standing into the case.  SC held that any question regarding a lack of standing is waived if not timely pled.  Even if there is a genuine issue about whether a party lacks standing, the appellate court should not do what the parties have not done themselves.

     The CA decision was reversed and the matter was remanded to that court for a determination on the merits of Christopher’s appeal.

    Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

From The Kentucky Supreme Court This Month: Dame v. Dame to be Reviewed

The Court accepted discretionary review in Woodson v. Woodson, in which the Court of Appeals upheld the trial court as it lacked authority to rule contrary to Dame v. Dame. The Court of Appeals' unpublished opinion is here. So, the question is whether fixed payments of maintenance over a fixed period of time remain non-modifiable.

There were no published family law opinions released by the Kentucky Supreme Court today.

No Published Family Law Opinions From Ky Court of Appeals Today

Looking For A Split Custody Rep For Ky Child Support Commission

Judge Lucinda Masterton is the new chair of the state Child Support Guidelines Commission. One of her tasks is to locate a “split custody” representative.  Ideally, this would be someone who is easy to work with, does not have a personal agenda, and recognizes that this is a representative position.  They are looking for a parent, not necessarily an attorney. For more information, contact Lisa Osborne at [email protected] or Joy Fitzgerald at [email protected]. To apply, email Judge Masterton at [email protected].

No Published Family Law Opinions From Ky COA November 5, 2010

No Published Family Law Opinions from Ky Court of Appeals Last Week