Divorce Law Journal

Post-Divorce Attorney Fees - Published Opinion from Ky Court of Appeals

HENCYE V. WHITE, ET AL.

A Domestic Violence Order had been entered against Husband, after which Wife filed a post-divorce motion requesting a parenting coordinator. Extensive litigation followed, including several motions for contempt and requests for attorney fees. Despite the fact that no active custody motion was before the court, Husband pursued numerous discovery requests, many of which were focused on obtaining financial information from Wife’s boyfriend and later husband (herein “boyfriend”). Husband requested attorney fees for Wife’s and boyfriend’s failure  to comply with discovery in the amount of $24,847.91. The trial court ordered Wife to pay $8,000 towards Husband’s attorney fees. Wife appealed and Husband cross-appealed.

The Court of Appeals held that the circumstances of this case do not justify any award of attorney fees. The American Rule, upheld in Rumpel v. Rumpel, requires parties’ to pay their own fees and costs. Rumpel v. Rumpel, 428 S.W.3d 354, 360 (Ky. 2014). There are two narrowly construed exceptions to the American Rule pertinent herein.

KRS 403.220 allows for an award of attorney fees based on disparity in income between the parties. In this case, the trial court did not make any finding that there was a disparity in income. Additionally, the trial court failed to consider other relevant factors including Husband’s obtrusive tactics and conduct.

CR 37.01 allows courts to require a party who fails to respond to discovery to pay for the other party’s reasonable expenses incurred in obtaining discovery, but makes an exception for when the parties’ refusal is “substantially justified” or when “other circumstances make an award of expenses unjust.” In this case, Husband was not entitled to attorney fees to compel discovery because he should not have been permitted to conduct the discovery in the first place. The Court of Appeals cites the ruling in Combs v. Daugherty, which prevents a party post-decree from engaging in discovery when no motion is pending. Combs v. Daugherty,170 S.W.3d 424, 426 (Ky. App. 2005). There was no pending motion when Husband made his discovery requests. Thus, the Court of Appeals concludes the sole purpose of the requests was to harass Wife and boyfriend.

Finally, the Court of Appeals notes that the trial court could not order Wife to pay attorney fees for boyfriend’s noncompliance with discovery. Thus, the Court of Appeals reversed the $8,000 award of attorney fees rendering Husband’s cross-appeal moot.

Digested by Elizabeth M. Howell.

Grandparent Visitation - Published Opinion from Ky Supreme Court May 5, 2016

MASSIE, ET AL. V. NAVY

“Questions Presented: Domestic Relations. Grandparent Visitation. Issues include the applicability of Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) and the “modified best interests” standard when a child’s custodians are a paternal uncle and aunt.”

Maternal grandmother filed action for visitation against child’s aunt and uncle who had possession of the child, as well as biological  parents of child. The trial court denied grandmother’s request for visitation rights and she appealed.

The Court of Appeals reversed the trial court’s ruling denying visitation and remanded holding the trial court failed to consider all of the necessary factors under Kentucky law. The Court of Appeals used a less stringent standard than the clear and convincing standard set forth in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) because aunt and uncle were denying grandparent visitation not biological parents who did not respond to the court action.

Aunt and uncle were granted discretionary review by the Kentucky Supreme Court. The Supreme Court fist addresses the appropriate legal standard finding grandmother failed to preserve the issue for appeal. The “clear and convincing” standard was used in the trial court proceedings and grandmother failed to object.

Next the Supreme Court turns to the Court of Appeals holding that the trial court erred by failing to consider all of the factors under Kentucky law. Walker sets forth several factors for courts to utilize in determining whether or not grandparent visitation is in a child’s best interest, incorporating the U.S. Supreme Court case Troxel v. Grandville, 530 U.S. 57 (2000). The Supreme Court holds that all of the Walker factors need not be considered. As is the case here, where the trial court considers several relevant factors and denies grandparent visitation its factual findings are not clearly erroneous. Grandmother failed to directly challenge any of the trial court’s evidentiary rulings, therefore the Supreme Court reverses the Court of Appeals and reinstates the trial court’s order.

Digested by Elizabeth M. Howell

Deviation From Child Support Guidelines - High Income, Ky Supreme Court Published Opinion May 5, 2016

MCCARTY V. FARIED

“Questions Presented: Family Law. Child Support. Income Exceeding Guidelines. Whether the trial court properly included projected expenses in the child’s reasonable needs when establishing an initial child support order for a high income parent.”

Father is an NBA basketball player earning a salary of $1,434,665 and an additional $197,240 in endorsements. Mother, who has primary physical custody of daughter, earns $1,050 and lives with her parents and other family members. After finding the child had reasonable needs of $4,250 per month, the trial court ordered Father to pay $4,250 a month in child support. The order was retroactive to the month following the month in which Mother filed her original motion for child support.

Father appealed and the Court of Appeals vacated and remanded the trial court’s order holding the retro-activity of the order was untenable and the trial court abused its discretion by not basing child support on the child’s responsible needs, stating the trial court relied on speculative evidence.

Mother sought and was granted discretionary review. The Supreme Court reversed the Court of Appeals and upholds the trial court’s order of $4,250 per month in child support. The Supreme Court first states that this case is clearly not bound by the child support guidelines, as the combined income of Father and Mother surpasses the limits of the guidelines. Thus, child support is within the trial court’s discretion when considering the reasonable needs of the child.

The Court of Appeals vacated the trial court holding that the reasonable needs of the child were based on speculative evidence citing prior Appellate Court cases Bell v. Catwright, 277 S.W. 3d 631 (Ky. App. 2009) and Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001). The Supreme Court holds that the Court of Appeals imposed an overly burdensome standard and inappropriately substituted its understanding of the child’s reasonable needs. The Supreme Court holds that on review “An order setting child support above the guidelines will be affirmed so long as the trial court sets out specific supportive findings and the award, as a whole , is reasonable in lights of those findings and the record.” In this case, the trial court properly held an evidentiary hearing and set forth specific facts supporting its child support award. The proof was not speculative just because some of the expenses had not yet been incurred by Mother.

Note that the Supreme Court differentiates this case from Bell and Downing because it is an initial request for child support and not a request for a modification bound by KRS 403,213(1) which requires a showing of material change in circumstances that is “substantial and continuing.”

The Supreme Court also upholds the  retroactivity of the trial court’s child support award holding that the effective date of child support is undisputedly “within the sound discretion of the trial court” and the child’s reasonable needs did not begin with the entry of the court’s support order supporting the retroactivity of any child support order.

Digested by Elizabeth M. Howell

Deviation from Child Support Guidelines - Low Income, Ky Supreme Court Published Opinion May 5, 2016

CARVER V. CARVER

Mother and Father, each collecting disability, had a child with Down Syndrome and significant health issues. The parties agreed to pay child support per the Kentucky guidelines, but Father never made any payments to Mother for support of the child.

Via Domestic Relations Commissioner, the trial court held a hearing on child support and found Father’s income totaled $1,391 per month, while Mother’s income totaled $938 per month, thus under the guidelines Father’s obligation was $232 and Mother’s was $157. Considering Father’s ability to pay, the court reduced Father’s child support obligation to the statutory minimum of $60 per month. No evidence was heard regarding the expenses of Mother nor the needs of the child.

Mother appealed and the Court of Appeals affirmed the trial court’s order. The Supreme Court granted discretionary review. First, the Supreme Court unequivocally states that the KRS 403.212 child support guidelines are presumptive guides and not black letter law. “Trial courts have broad discretion to deviate from the presumptive guidelines, limited only by reasonableness and actually making a record of the reasons for the deviation.”

The Supreme Court recognizes that in the case at hand, the needs of the child exceed the abilities of either Father or Mother to pay. While the child’s needs would allow the court to deviate from the guidelines and increase support, the disabilities of both parents are a reason for a downward deviation. The Supreme Court holds that while deviation was appropriate, the trial court acted incorrectly in failing to consider Mother’s income and expenses, or the reasonable needs of the child. By decreasing Father’s support the trial court allocated 25% of the child support obligation to Father and 75% to Mother without giving any rationale. Thus, the Supreme remands the case to the trial court for consideration of the child’s reasonable need for support and the allocation of the support between each parent.

Digested by Elizabeth M. Howell

Published DeFacto Custodian Opinion from Ky Court of Appeals April 29, 2016

CHADWICK V. FLORA, ET AL.

Grandmother appealed an order finding she was not a de facto custodian of her grandchild. The order also denied her motion for custody and visitation.

Grandmother’s first argument on appeal is that the trial court erred in finding she did not met the KRS 403.270(1)(a) standard for a de facto custodian. The Court of Appeals agrees with the trial court and holds Grandmother was not a de facto custodian because she was not the child’s primary caregiver. “A grandparent who co-parents a child with the natural mother or father does not make the grandparent the primary caregiver.”

Grandmother next argues that the trial court should have held Father in contempt for violating the terms of an agreement Grandmother and Father made regarding visitation. The Court of Appeals holds the trial court did not err by denying the contempt motion as the trial court’s finding that Father was not at fault was fully supported by the evidence. Grandmother also argues the testimony of  the child’s counselor should not have been admitted as evidence because Father failed to disclose her as an expert in discovery. The Court of Appeals again affirms  the trial court, holding the counselor’s testimony was not utilized for the de facto custodian issue, only limited to  contempt.

Grandmother’s final argument is that the trial court should have held further hearings regarding custody and visitation, as the original hearing was limited to the issue of de facto custodianship. The Court of Appeals agrees holding the original hearing was limited and remands the case for additional proceedings on custody and visitation. The court notes that as Grandmother is not a de facto custodian she “must prove either: (1) the parents are shown by clear and convincing evidence to be unfit custodians; or (2) the parents have waived their superior right to custody by clear and convincing evidence,” to be successful in obtaining custody. Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010).

Digested by Elizabeth M. Howell