Divorce Law Journal

Late motion to alter, amend or vacate custody decision when neither party received Order within 10 days from entry - Published Opinion from Ky Court of Appeals

HOFFMAN V. HOFFMAN

The trial court entered an Order reducing maintenance which neither party received until twelve days after the Order was entered. Wife filed a motion to alter, amend, or vacate pursuant to CR 59.05, CR 60.01 or CR 60.02. The trial court found that no fault could be attributed to Wife for the late filing of her motion, but concluded it had no discretion to consider her motion stating it had lost jurisdiction after ten days expired.

The Court of Appeals held that the trial court retained jurisdiction to consider Wife’s motion as it is “well within the rule’s stated grounds and the authority of the court to invoke CR 60.02 when a clerk is responsible for a mistake that prevents a party from receiving notice of the entry of an order or judgment.” The Appellate Court notes it cannot grant Wife relief on the basis of CR 59.05 alone, as it’s interlocutory in nature, but may grant relief pursuant to CR 60.02.

Digested by Elizabeth M. Howell

Kentucky trial court must make its own findings of fact and may not nearly verbatim adopt party's proposed findings - Publish Opinion from Ky Court of Appeals

RETHERFORD V. MONDAY

Mother argued on appeal that the trial court failed to make specific, independent findings of fact in a custody case. The trial court had nearly verbatim adopted the proposed findings submitted by Father. The Court of Appeals vacated the trial court judgment holding that cases involving children and families require strict compliance with CR 52.01 which requires that the court  itself make findings of facts and conclusions of law. The Court of Appeals cites Callahan v. Callahan and the Supreme Court case Keifer v. Keifer as support for its decision. Keifer v. Keifer, 354 S.W.3d 123 (Ky. 2011);Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky. App. 1979).

Justice VanMeter writes separately concurring in result alone. He disagrees with the majority writing “a trial court does not err by inviting counsel to submit Findings of Fact and Conclusions of Law, and then exercising its discretion in making its selection,” but writes that “the Findings appear to be unsupported by substantial evidence” in this case, thus he concurs in result.

Digested by Elizabeth M. Howell

Extension of Domestic Violence Order as Sanction for Contempt - Published Opinion from Ky Court of Appeals

MORRIS V. MORRIS

Wife filed and was granted a DVO. Husband continued making threats and Wife filed a Motion for Contempt. At the hearing on Wife’s contempt motion, the trial court extended the DVO as a contempt sanction. After Husband’s appeal of its order, concerned Wife would be left without protection, the trial court vacated the order of extension made at the contempt hearing, conducted a hearing pursuant to KRS 403.750, and granted an extension of the DVO. Husband appealed that order as well.  

The Court of Appeals first looks to the extension granted as a sanction at the hearing on Wife’s motion for contempt. Although Wife had not filed a motion seeking extension, the Court of Appeals affirms the trial court’s order holding that the extension was appropriate as a sanction given it was reasonably related to the nature of Husband’s “contemptuous behavior.”

The Court of Appeals clarifies that even aside from the contempt issue the trial court could properly grant an extension of the DVO given that at the hearing evidence was presented that 1) the DVO was effective in protecting Wife, and 2) Husband intended to harm Wife when DVO expired.

The court then reverses the trial court’s order to vacate the contempt order, as the trial court had lost authority to act upon filing of the appeal. As the Court of Appeals affirmed the contempt order, Wife’s DVO protection remained in place.

Digested by Elizabeth M. Howell

DVO, Record on Appeal, Published Family Law Opinion from Ky Court of Appeals

GAMBREL v. GAMBREL

Father appealed entry of a DVO, but failed to ensure the recorded hearing was included with the record on appeal. The Court of Appeals affirmed the entry of the DVO holding, pursuant to King v. Commonwealth, that without the recorded hearing they must assume the content of the hearing supported the entry of the DVO. King v. Commonwealth, 384 S.W.3d 193, 194-195 (Ky. App. 2012). The court notes that this problem occurs most often in family court cases and cautions practitioners to designate hearings to be included in the record on appeal  to ensure all necessary electronic records are included in the record on appeal.

Digested by Elizabeth M. Howell

Custody appeal dismissed where notice of appeal was not amended to include ruling on post-judgment motion. Ky Court of Appeals Published Opinion

BROOKS V. BYRD

Mother filed an appeal from a custody order while a post-judgment motion was pending. After the filing of the appeal, the trial court ruled on the post-judgment motion entering findings of facts, conclusions of law, and a custody/visitation order. Mother did not amend her notice of appeal and the post-judgment documents were not included in the certified record. Therefore, the Court of Appeals declined to enter a ruling on the merits and dismissed the appeal for noncompliance with CR 73.02(1)(e) (ii) which states “A party intending to challenge a post-judgment order listed in this rule, or a judgment altered or amended upon such motion, must file a notice of appeal, or an amended notice of appeal, within the time prescribed by this rule measured by the date of the CR 77.04(2) docket notation regarding service of the order disposing of the last such remaining motion.”

Digested by Elizabeth M. Howell

Ky Court of Appeals - GAL may invoke or waive the child's patient-psychotherapist privilege on behalf of the child in a child custody proceeding

EVANS V.HESS, ET AL.

The Kentucky Court of Appeals addressed three appeals stemming from the same Boone Family Court post-dissolution case:

2013-CA-002072-ME

The first appeal filed by Father challenges the court’s subject-matter jurisdiction, custody modification, and child support modification. Father first argues the Kentucky court lacked subject-matter jurisdiction because the Petition was filed in Kentucky before the Montana court determined Kentucky was the more convenient forum. Prior to the current appeal, Father filed a writ of prohibition and the Court of Appeals held Kentucky had subject-matter jurisdiction. As the “law of the case” doctrine provides that a decision of an appellate court applies to any subsequent trial or appeal, even if erroneous, Father’s argument is without merit. The Court of Appeals holds the trial court had subject-matter jurisdiction.

Father goes on to argue the trial court abused its discretion in modifying custody. He first cites Mother’s failure to file two affidavits pursuant to the requirements set forth in KRS 403.350. The Court of Appeals applies the Supreme Court’s ruling in Masters v. Masters holding, “a trial court had authority to rule on a motion for custody modification despite the party’s noncompliance with an affidavit.”  Masters v. Masters, 415 S.W.3d 621, 624 (Ky. 2013).

Father further argues that the trial court abused its discretion by disregarding the custodial evaluation. The Court of Appeals affirms the trial court holding it did not abuse its discretion citing its consideration of all the evidence and finding the custodial evaluation less credible than other evidence presented.

Father also argues the trial court abused its discretion in modifying child support. The Court of Appeals disagrees holding the trial court’s decision was not clearly erroneous in that the trial court’s decision was supported by substantial evidence.

2014-CA-001512-ME

The second appeal filed by the children’s GAL questions the trial court’s authority to overrule the GAL’s objection to testimony from the children’s psychotherapist. KRE 507 governs patient-psychotherapist privilege and grants exceptions to the privilege only when the  mental condition of the patient is at issue. In this case, the testimony was not directly related to the mental health of the children. Traditionally, no exception would apply. However, Kentucky has never held children have an independent right to assert patient-psychotherapist privilege in custody proceedings.

The Court of Appeals holds that a GAL when appointed may either invoke or waive the patient-psychotherapist privilege on behalf of the child stating:

“To allow a parent to waive a privilege held by the child in a custody

dispute, over the objections of that child, is not only bad policy, but defeats the

purpose of the existence of the privilege. The impropriety of a rule allowing such

waiver would be further complicated here by the fact that the parent waiving the

privilege was furthering interests which are neutral, if not actually adverse, to those

of the children.”

The Court of Appeals reverses the trial court to the extent the testimony from the children’s psychotherapist was admitted.

Notably, the court states this case is distinguishable from Bond v. Bond where the mental health of the children was at issue, but does not clarify when the children’s mental health is of enough significance to rise to the level of one of the exceptions to the privilege found in KRE 507(c). Bond v. Bond, 887 S.W.2d 558 (Ky. App. 1994). The court simply states, “the psychotherapist-patient privilege protects confidential communications from disclosure no matter how relevant they may be to a disputed issue.”

 

2015-CA-000043-ME

The final appeal addresses issues of contempt. Father argues that the trial court abused its discretion by denying his request for make-up parenting time as a sanction for Mother’s contempt. The Court of Appeals holds the trial court did not abuse its discretion because Father’s motion did not include any language to indicate his request was sought as a sanction, contained multiple motions, and was moot.

Next Father argues the court abused its discretion by denying his motion to modify child support when one of his children turned eighteen. Father’s motion did not include a child support worksheet, income information, or insurance documentation as required by KRS 403.212(6)(a) and FCRPP 9(4). While Father is entitled to a review of child support, the Court of Appeals holds the trial court correctly determined the motion at issue was defective.  

Finally, Father argues the trial court abused its discretion by staying Mother’s payment of his attorney fees as a sanction during the appeal. The Court of Appeals holds the prevention of inconsistent rulings is a legitimate reason to stay the enforcement of the sanction and such order was within the trial court’s discretion.

Digested by Elizabeth M. Howell

Published Opinion, Ky Court of Appeals, Termination of Parental Rights and Necessity of Notices of Appeal for Each Child

W. L.C. V. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.

Mother  appealed the  court order terminating rights to daughter after court terminated her parental rights for daughter and son, arguing the termination was not based on substantial evidence and the  trial should have been delayed to allow her an opportunity to secure negative drug test results essential to her defense. The Appellate Court found that because the termination order was made pursuant to KRS 625.090, there had already been multiple continuances, and CHFS stipulated to some of the missing evidence, there simply was no grounds for reversal.

Although mother failed to file an appeal in son’s case, she argued that the Appellate Court should assume she intended to appeal both judgments and allow her to appeal son’s case as well. The Court of Appeals holds that “Because there were two separate cases and two separate judgments, two separate notices of appeal should have been filed.” While strict compliance is no longer required, substantial compliance is required. Substantial compliance requires a separate appeal of separate judgments.

Digested by Elizabeth M. Howell.

Domestic Violence Published Opinion from Ky. S. Ct. October 29, 2015

PETTINGILL V. PETTINGILL

Questions Presented: Domestic Violence. Appellate Procedure. Issues involve the use of “lethality factors” in a domestic violence determination and the interplay between CR 75.07(4) and CR 98 when the trial videotape is omitted from the record on appeal.

Wife was granted DVO against husband by family court. The family court entered a DVO on Court Form 275.3 and noted further findings of fact, nine out of twelve lethality factors, on its docket sheet. Husband appealed and the Court of Appeals affirmed the family court’s DVO. The Supreme Court granted discretionary review.

Husband first argues that he was denied his constitutional right to appellate review because the circuit court clerk failed to certify the video record of the domestic violence hearing, therefore, the Court of Appeals did not receive a copy of the recorded hearing. The Supreme Court does not consider the assignment of error because husband had clear notice the video was not part of the record. He did not mention the incomplete record in his brief for the Court of Appeals and therefore the Supreme Court holds he is foreclosed from now assigning error. Additionally, husband’s counsel conceded during oral arguments at the Court of Appeals level that the video was not relevant to the appeal. 

Next, husband argues that the family court impermissibly took notice of the lethality factors for intimate partner violence. The Supreme Court finds this argument is without merit as a trial court did not take judicial notice of the lethality factors, but rather considered them as part of judicial knowledge. A judge may use his or her background knowledge of an area, such as domestic violence, to inform its judgment. In this case, the court used the lethality factors to assess the likelihood that domestic violence would occur again. All of the adjudicative facts were proven through testimony.

Third, husband argues that the court erred by using the lethality factors as the standard to enter a DVO. The Supreme Court agrees with the Court of Appeals that the family court adhered to KRS 403.750, as evidenced, in part, by its use of the AOC Form 275.3 which “clearly tracks” the language of the statute. The court’s reference to the lethality factors does not negate the court’s finding under statute that husband inflicted fear of imminent physical injury, serious physical injury, sexual abuse, or assault and that fear, injury, abuse or assault may occur again in the future.

Finally, husband argues that the AOC Form 275.3 is deficient, therefore the family court did not specify sufficient finds of fact to support the entry of a DVO.  The court does not consider this argument, holding that the family court made sufficient findings of fact as the family court not only found domestic violence had occurred and may occur again, but also listed nine specific findings to support its order.

 Digested by Elizabeth M. Howell

Ky grandparent visitation as against a non-parent custodian: Ky Court of Appeals Published Opinion August 14, 2015

NAVY V. MASSIE, ET AL.

Maternal grandparent filed a KRS 405.021(1) motion seeking grandparent’s visitation rights with minor child. Child was living with his paternal aunt and uncle. The exact custody status was unclear, as at least one parent appeared to have some visitation. The general rule regarding grandparent visitation in Kentucky is the rule the Supreme Court set forth in Troxel and clarified in subsequent Kentucky case law;there is a presumption a fit parent acts in his or her child’s best interest when denying a grandparent visitation. A grandparent seeking visitation must show by clear and convincing evidence that grandparent visitation is in the child’s best interest.  

In this case, the Appellate Court did not apply the clear and convincing standard use post Troxel, holding “KRS 405.021 has not been interpreted to require a grandparent to clearly show that visitation is in a child’s best interest against anyone besides a parent.” As it was the minor child’s aunt and uncle, and not parents, who denied maternal grandmother visitation, the Trial Court erred in using the clear and convincing standard. The Appellate Court remanded the case holding that no presumptions or preferences shall be given to nonparental custodians.

The dissent would have affirmed, believing the trial court correctly used the best interest of the child standard as set forth by Kentucky case law. Additionally, the dissent pointed out that the issue of whether a heightened grandparent visitation standard applies to nonparent guardians was not preserved for appeal.

Published Family Law Opinion from Ky Court of Appeals Last Week

MCVICKER V. MCVICKER

At trial, husband made several nonmarital claims, and argued for a 70/30 split of marital property in his favor, since he cared for the parties adult disabled child. The Family Court found that Husband had nonmarital claims in the home and in a Morgan Stanley account. It also split the parties’ marital Morgan Stanley savings 70/30, did not award the wife maintenance, and did not consider the parties’ vehicles in division of the marital property. The wife appealed  these findings of fact and conclusions of law, arguing on appeal the Family Court abused its discretion.

The Appellate Court looks to Sexton for guidance in reviewing the Family Court’s award of nonmarital interest. The Appellate Court reverses the decision awarding Husband a nonmarital interest in the marital home, as there was no source of funds evidence, and no tracing of funds from the sale of one house to the purchase of the next house. The Appellate Court held testimony alone is not sufficient to meet the burden of proof to establish a nonmarital claim. The Appellate Court also reverses the Family Court’s award of the Morgan Stanley bank account as nonmarital property, holding there was no tracing from checks given as gifts to the account itself.

Next the Appellate Court looks to the 70/30 split of the marital Morgan Stanley account. The Appellate Court vacates the Family Court’s award because the Family Court ignored the KRS 403.190(1) factors in dividing the marital property. The Appellate Court also notes that there was never any testimony presented that the Morgan Stanley account was used for the benefit of the parties’ disabled adult son.

The Appellate Court orders the Family Court to consider the values of the parties’ vehicles on remand. Because the Appellate Court reversed the family court’s assignment of non-marital interests and division of marital property, they vacate the family court’s decision on maintenance. However, the Appellate Court notes that the family court improperly considered the Wife’s current standard of living in its decision, and orders the court to use the KRS 403.200(2) factors on remand.

Chief Judge Acree writes separately at the end on procedure, stating that to be in compliance with CR 76.13 parties in an appeal must cite to the certified record and not an appendix created by counsel.

Digested by Elizabeth M. Howell.

Published Family Law Opinion from Ky Court of Appeals Today

Farrar v. Farrar

The parties’ Settlement Agreement included a provision for the sale of the marital residence. When husband rejected an offer for the purchase of such residence and asserted he intended to buy the home, the trial court ordered wife to sign a quitclaim deed over to husband. For her equity in the home the Trial Court awarded wife the value of half of the offer for purchase of the home less hypothetical closing costs. Wife appealed the Trial Court’s calculation of equity in the home, as well as other matters.

Wife first challenged the Trial Court’s jurisdiction to amend the parties dissolution decree without making the required CR 60.02 findings. The Appellate Court  held this argument was waived because it was not brought up prior to the appellate action. The Appellate Court reiterated the Supreme Court’s holding in Commonwealth v. Steadman that while subject-matter jurisdiction cannot be waived, case specific jurisdiction, jurisdiction over a particular case where the court has jurisdiction of the general matter, can be waived.

The Appellate Court next addressed husband’s claim that wife’s argument is estopped by deed. Although wife executed a quitclaim deed and accepted payment from husband, the Appellate Court held wife did not waive her right to appeal. The court looked to the general support for preservation of the right to appeal and wife’s action, which was in compliance with the trial court’s order. Additionally, the Appellate Court held that the acceptance of payment did not waive the right of appeal. AlthoughComplete Auto Transit  holds that a party who accepts payment on a judgment is estopped from pursuing an appeal to reverse that judgment, the Appellate Court held Complete Auto Transit does not apply to “acceptance of monetary payments in dissolution proceedings where there is no disagreement or dispute concerning whether the accepting party was entitled to at least the amount accepted and the only issue on appeal concerns whether the accepting party is entitled to additional money.”

The Appellate court concluded that it was an abuse of discretion for the trial court to use hypothetical closing costs to reduce the amount of equity wife received when husband was keeping the house and had no immediate plans to sell. Including closing costs in equity calculations is only appropriate when “(1) the receiving spouse plans or intends an imminent sale of the property without delay; and (2) credible and reliable evidence supports the estimated costs of sale.”

The Trial Court awarded wife attorney fees because husband willfully and deliberately violated the parties’ settlement agreement. The Appellate Court remanded to Trial Court because the Trial Court did not make a finding about financial circumstances which is required in awarding attorney fees. The Appellate Court upheld the Trial Court’s decision not to impose CR11 sanctions, as wife’s motion was well grounded in law.

 

Published UCCJEA Opinion from Ky Court of Appeals Today

Danaher v. Hopkins

Trial court's denial of petition to register a foreign custody judgment was affirmed. A court must enforce a foreign judgment only when the issuing state had jurisdiciton under the UCCJEA. Because North Carolina did not have initial jurisdiciton it does not have exclusive continuing jurisdiction. 

Trial court's finding that Kentucky is the home state of the child was affirmed. Reversal of a factual finding requires it to be clearly erroneous and not supported by substanial evidence which is not the case in this matter.

Father also appealed from a second order requiring a custody action to proceed before Warren Circuit Court. This was not a final  and appealable order as it did not adjudicate the rights of either party. Therefore the appeal of this order was dismissed.

 

 

Ky Court of Appeals Published Family Law Opinion Today:Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within 5/2/13 motion to vacate the DVO, Appeals court lacks jurisdicti

Erwin v. Cruz 

Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within  5/2/13 motion to vacate the DVO, Appeals court lacks jurisdiction to consider appeal of the denial of the 2013 motion to vacate.

Appeal from Verbal Orders, Citations to Record on Appeal, Case Digest, Oakley v. Oakley, Ky Court of Appeals

Oakley v. Oakley, 2011-CA-001410-ME

Published:   Striking Appellant’s Brief and Dismissing Appeal   

County:  Laurel

Dad’s counsel filed Notice of Appeal from FC’s verbal order at hearing denying his motion to remove supervised parenting time restriction, inter alia.  FC entered its written order one week after the hearing, and only one day after Dad filed his Notice of Appeal.  CA recognized that courts speak only through written orders and that Dad should have appealed from the written order or amended his original notice to include the written order.  Because he did neither, there was no order for CA to review, and appeal was dismissed for lack of jurisdiction.

CA also pointed out that Dad’s brief was not in compliance with CR 76.12 due to omission of pinpoint citations to written or video record and to omission of statements of error preservation, even after Dad was given an opportunity to submit a second brief; so brief was stricken. 

Affirmed.

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

Lee v. George, Ky S. Ct., Denial of a Writ of Prohibition; Bonds

Lee v. George

2011-SC-000265-MR

Published:   Affirming  

County:  Jefferson

Father appealed Court of Appeals’ denial of petition for writ of mandamus or prohibition, in which he asked that the judge be required to disqualify himself from case due to his bias against Father and that the Guardian Ad Litem and opposing counsel be disqualified because they engaged in fraud and conspiracy against him.

FACTS:

Father and Mother divorced in 2009.  They have 3 minor sons.  Judge Stephen George presided over highly contentious divorce proceedings, including a trial on child-related issues and a separate trial on financial issues.  At the time Father filed his writ Petition, Mother had full custody of sons with Father having unsupervised parenting time with them on a regular weekly schedule and various holidays.  Judge George attributed the contentiousness of the proceedings to Father.  Father represented himself through much of the litigation.  He filed numerous motions with FC, many of which were deemed to be baseless.  Correspondingly, Mother filed motions for CR 11 sanctions against Father, but Judge George was hesitant in doing so because Father was unrepresented.  However, on Mother’s Motion, Judge George entered an Order requiring Father to post $7,500 bond prior to any future motions being called.  At that time, Father had filed 36 motions, only 5 of which FC found to grounded in law or fact.  Father had also commented to FC and others indicating his intent to continue this pattern.   In response to the Order requiring a bond, Father filed the writ that is the subject of this appeal, in which he asked CA to order Judge George to disqualify himself due to bias and to disqualify Mother’s counsel and GAL alleging they had engaged in fraud and conspiracy.  In his writ petition, Father posited that the $7,500 bond was an example of Judge George’s bias, but also that the bond violated his due process rights and his right of access to the courts.  CA construed this as an additional basis for Appellant’s request for extraordinary relief.  CA denied the petition, finding that the bias, fraud and conspiracy issues are properly the subject of a direct appeal, and that the $7,500 was reasonably limited in scope so as not to deprive Father of meaningful access to the court. 

ANALYSIS:

Extraordinary writs may be granted in two classes of cases:  1. where the lower court is proceeding or about to proceed outside of its jurisdiction and there is no remedy through application to an intermediate court, and 2. where the lower court is acting or about to act erroneously, and there is no adequate remedy by appeal—this class requires a showing that “great injustice and irreparable injury will result if the petition is not granted.”  However, there is a “subclass” of special cases where the showing of great injustice and irreparable injury is not required; instead, it must be shown that a “substantial miscarriage of justice” will occur if the lower court proceeds erroneously, and correction of the error is necessary “in the interest of orderly judicial administration,” but no adequate remedy on appeal must still be shown.  Nevertheless, even after meeting these tests, the requested relief need not be granted—that is within the sound discretion of the appellate court.

Father claims his writ fell into both classes and the subclass.   

First class of writs:

Father claimed that Judge George acted outside of his jurisdiction because he was a “biased individual” and not a truly neutral judge.  SC restated this argument as a claim that FC was acting contrary to law and therefore outside its jurisdiction.  SC held that “jurisdiction” in this class of writs refers not to legal error, but to subject-matter jurisdiction, which goes to the court’s authority to even hear cases.  SC held that FC had jurisdiction to hear divorce cases and to issue orders related thereto.

Second class of writs:

On the bias, conspiracy and fraud issues, Father claimed that he had no adequate remedy on appeal and that he would suffer irreparable injury due to the amount of time it takes for resolution on appeal and the deleterious effect this would have on the relationship with his children, as he believed that his parenting time is too limited.  SC noted its previous holdings that the delay and expense of appeals does not constitute irreparable injury or render remedy by appeal inadequate, and that his claimed injuries are not the kind that justify an extraordinary writ.

On the $7,500 bond issue, Father claimed that the bond was unfair and inappropriate, focusing on Judge George’s alleged bias against him.  He also made a bare argument that that bond violated his due process rights, right of access to the courts, and Eighth Amendment rights.  However, he did not expressly ask for a writ to set aside the bond.  CA construed this discussion as a request for relief separate from his request to disqualify Judge George, the GAL, and Mother’s counsel, and CA addressed the issue on the merits.  CA found that the bond was reasonably limited in scope.  SC refused to address the issue on the merits because Father failed to request the relief in the “Request for Relief” section or any supplemental documents to CA. 

Affirmed.

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

N.L. v. W.F., Modification of Custody in a Dependency, Neglect and Abuse proceeding; Prematurity of Appeals and Finality of Orders

N.L. v. W.F., 2010-CA-001787-ME and 2011-CA-000091-ME

Published:   Reversing and Remanding

County:  Greenup

Mother appealed FC order awarding custody of children to children’s fathers.

FACTS:

Mother had two children from two separate fathers.  After altercation with her boyfriend, Cabinet filed petition dependency, neglect and abuse (DNA) petitions for both children.  Children were placed with Father 1’s parents after temporary removal hearing.  At disposition hearing, Child 1 was placed with his father and Child 2 was placed with Father 1’s parents but Father 2 was allowed to take Child 2 with him to his home in Florida.  FC then scheduled a permanent custody hearing.  At permanent custody hearing, Mother asserted that permanent custody hearing could not be held as neither Father had filed a Motion for Permanent Custody.  FC disagreed and proceeded with the hearing, and evidence at the hearing reflected that Mother had history of alcohol and substance abuse but was making progress on Cabinet’s case plan.  Cabinet offered evidence regarding the Fathers’ criminal history and home environment.  At the hearing, each Father orally requested that he be awarded custody of his Child.  FC made oral finding, based upon preponderance of the evidence, that it was in Children’s best interests to be in custody of their Fathers with supervised visitation to Mother, citing Mother’s lifestyle involving drugs and alcohol, though recognizing she was currently doing well.  FC completed AOC-DNA-9 form for each child, reducing oral order to written form.  In Findings of Fact section, FC checked that it had considered several KRS 403.270 factors, but provided no additional specific findings in the provided space on the form.  Mother filed a timely CR 59.05 motion to alter, amend or vacate, asserting that FC could not modify custody on its own motion; that Cabinet was under duty to make reasonable efforts to return children; that FC ignored protective needs of Children given Fathers’ admitted criminal or substance abuse histories; and that FC failed to make written findings in support of custody determination.  FC issued order denying Mother’s motion but stated in the Order that it would issue subsequent written order with more detailed findings.  This order included no finality language.  Mother filed notice of appeal from the Order denying her motion to alter, amend or vacate.  FC subsequently issued its Order including detailed findings of fact, including another denial of Mother’s motion to alter, amend or vacate.  The findings included general statements regarding children’s relationships with their fathers and Father 2’s parents, existence of mother’s drug and alcohol problems, and recognition that Cabinet thought Fathers were appropriate and Guardian Ad Litem recommended placement with Fathers. 

ANALYSIS:

Issue 1:  Did Mother properly appeal from FC’s initial denial of motion to alter, amend or vacate?

            CA noted that, for an Order to be final and appealable, Rules require that an order must either adjudicate all rights of all parties in a proceeding or lower court must issue finding that there is no just reason for delay as to an order resolving only a portion of all the rights of all the parties in a proceeding, and that portion of all of the rights of all of the parties must be finally resolved.  As the initial order did not include this language of finality, then it must have adjudicated all the rights of all the parties in order to be final and appealable.  CA found that the Order was inherently interlocutory because of its stated intention to make more detailed findings of fact.  However, Mother’s notices of appeals should not be dismissed, but should relate forward to FC’s order containing more detailed findings, per CR 73.02.

Issue 2:  Did FC err by conducting a permanent custody hearing, as neither Father filed a motion requesting a change of custody?

            CA held that KRS Chapter 620 procedural structure does not preclude a permanent custody hearing and award of custody, so long as the proper procedures are followed, but such a determination is not required under this statute. 

Issue 3:  Did FC err by granting custody to Fathers?

            Mother’s Orders of custody were not in record, so CA could not address the possible procedural deficit in Fathers’ failures to file motion for modification of custody, as CA had no knowledge of validity or content of orders and whether FC had jurisdiction to modify them.  However, CA could rule as to propriety of FC’s ultimate decision to award custody.  Custody determination in KRS Chapter 620 proceeding must follow standards in KRS 403.270.  CA found that FC failed to sufficiently consider and make findings related to KRS 403.270 factors, as FC made no separate finding, apart from pre-printed portion of AOC form, that custody awards were in children’s best interests, nor did ruling take Mother’s progress case plan or Fathers’ past legal issues. 

Reversed and remanded to FC. 

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

A.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; and M.W.C., a child, Ky. COA, Termination of Parental Rights and Anders Procedures

A.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; and M.W.C., a child

No. 2011-CA-00504-ME

Published: Opinion Affirming

County: Kenton

 A.C. appeals from an order of the Kenton Family Court terminating her parental rights with regard to her minor son, M.W.C. The Court of Appeals is called upon to determine if it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493(1967) to appeals from orders terminating parental rights and, if so, whether the appeal herein is frivolous.

In January, 2009, the Cabinet filed a petition in Kenton Family Court claiming A.C. abused M.W.C. through excessive discipline. The Family Court committed M.W.C. to the Cabinet’s custody and adjudicated M.W.C. a dependent child. In March, 2010, the Cabinet filed its petition for involuntary termination of A.C.’s parental rights, which was tried in December, 2010.

A licensed clinical social worker testified about the abusive discipline, including the use of a stun gun. A.C. also failed to provide needed therapy and mediation. A social worker for the Cabinet testified that A.C. was resistant to services, refused to complete parenting classes, failed to complete a psychological examination and did not attend Alcoholics Anonymous meetings. The social worker reported that since admission to the Diocesian Catholic Children’s Home, M.W.C.’s disruptive behavior decreased and his grades improved, and concluded M.W.C. is happier and is likely to be adopted.

 In January 2011, the family court entered comprehensive findings of fact and conclusions of law, and an order terminating A.C.’s parental rights as to M.W.C. M.W.C. was committed to the Cabinet’s custody and the Cabinet was vested with authority to place M.W.C. for adoption.

A.C. filed a timely appeal and her court-appointed counsel filed an appellate brief stating she was unable to find any meritorious assignment of error to raise on A.C.’s behalf and requested this court to independently review the record in accordance with Anders to preserve A.C.’s right to fundamental fairness. Thereafter, A.C.’s counsel filed a motion to withdraw, pursuant to Anders, which was granted. A.C. was given additional time to retain new counsel and/or file a supplemental brief, but she has not done so.

After expiration of the allotted time, the Cabinet filed a Motion to Dismiss and a Motion to Advance, claiming A.C. failed to provide any claims of error and no party raised an issue necessitating merit review.  No “case or controversy” exists, justifying dismissal of A.C.’s appeal. On December 9, 2011, the Cabinet renewed its Motion to Dismiss. All matters are now ripe for review.

The question presented is whether Kentucky will apply the principles and procedures of Anders to appeals from orders terminating parental rights. In Anders, The United States Supreme Court addressed the duty of the court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after he has determined that there is no merit to the indigent’s appeal. The Supreme Court established Anders procedures or an Anders brief to safeguard a criminal appellant’s constitutional right to counsel when his court-appointed attorney wants to withdraw from a claimed no-merit appeal.

The Supreme Court said if the court-appointed counsel believes the indigent’s case is entirely frivolous, he should advise the court and ask to withdraw. The request should be accompanied by a brief referring to anything in the record that might support the appeal. After the indigent has the opportunity to review the brief and raise any points he chooses, the court will decide whether the case is wholly frivolous. If it so finds, the court may allow counsel to withdraw and dismiss insofar as federal requirements are concerned or decide on the merits, if state law requires. If, however, it finds any legal points arguable on their merits, the indigent must be offered assistance of counsel to argue the appeal.

When the attorney believes there are no non-frivolous grounds for appealing a termination of parental rights, the Anders procedures may be applied, providing balancing of the rights of the indigent parents and the obligations of their appointed attorneys. Just as the US Supreme Court provided Anders safeguards in the criminal context, our Court of Appeals provides indigent parents the right to appellate counsel in termination of rights cases.

The Court of Appeals provides a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. The Anders brief is not a substitution for an advocate’s brief on the merits, nor is it an escape provision to end undercompensated legal services the lawyer agreed to provide.

Having articulated the standard to be applied, the Court of Appeals reviewed the records and agreed with counsel’s assessment and saw no basis warranting relief on appeal. The Cabinet’s Motion to Dismiss and to Advance is moot and the Kenton Family Court’s order terminating A.C.’s parental rights to M.W.C. is affirmed.

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

A.M.W. v. Cabinet for Health and Family Services. Ky COA, Child must be party to termination of parental rights appeal

A.M.W. v. Cabinet for Health and Family Services

No. 2011-CA-001441-ME

Published: Opinion and Order Dismissing

County:Pike

A.M.W. appealed from an Order terminating the Appellant’s parental rights. The Cabinet for Health and Family Services filed a motion to dismiss the appeal for failure to join the child as a party.

Appellant served a copy of the notice of appeal on the attorney for the Cabinet and the
circuit court judge, but failed to serve a copy on the guardian ad litem. Although the child at issue was included in the style of the notice of appeal, the child’s guardian ad litem was not
provided fair notice of the appeal and the child was not joined as a party.

In an action to terminate parental rights, the child’s interests are not the same as
the interest of the parents or the Cabinet.
When a parent appeals an order terminating parental rights, the child is
a principal focus of the appeal and must be made a party to protect his
interests. The child is a necessary and
indispensable party to an appeal from the termination of parental rights. Failure to join the child requires dismissal of the appeal.

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

Collett v. Dailey, Ky COA, DVO Against Guardian of Elderly Mother

Collett v. Dailey as Guardian of Hazel C. Collett

No. 2010-CA-002115-ME

County: Kenton

Published: Opinion affirming

James Collett, Jr. appealed from a domestic violence order entered August 18, 2010 in Kenton Circuit court, Family Division, finding that he perpetrated acts of domestic violence or abuse against his mother, Hazel C. Collett.

Dailey, as guardian for Hazel C. Collett, filed a domestic violence petition against James alleging verbal abuse, harassment, and interference with Hazel’s caregivers. After an evidentiary hearing, the court found that James had committed acts of domestic violence against Hazel. He was prohibited from contact or communication, directed to remain at least 500 feet away except under supervision, and ordered to vacate the residence he shared with his mother.

James contends on appeal that the family court’s finding of domestic abuse is not supported by a sufficient quantum of evidence.

Evidence presented at the hearing indicated that Hazel was 83 years old and had recently sustained a broken hip and required assisted care. James prevented caregivers from tending to his mother, giving her food and medications, and providing physical support and assistance. He removed night lights and placed throw rugs where Hazel needed to walk, even though she used a walker.

The Trial Court found that James’s actions interfered with Hazel having a secure and uninterrupted life and she was a victim of domestic violence. The Court of Appeals agreed, holding that considering the statutory definition of domestic violence and abuse and the evidence in this particular case, the Trial Court’s findings were not erroneous and the Kenton Circuit Court’s order is affirmed.

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

N.B. v. C.H., Ky COA, Child Related Orders, Finality, Relocation, Burden of Proof

N.B. v. C.H.

No. 2010-CA-002257-ME

Published: Opinion Affirming in Part, Vacating in Part, and Remanding

County: Fayette

N.B., (Mother) appealed November 22, 2010 order of Fayette Family Court which addressed issues regarding N.H. (Daughter) the minor child born of Mother’s marriage to C.H. (Father).

The parties were divorced in August, 2002.  They agreed to share joint custody with Father the primary residential parent and Mother to have liberal timesharing.  Shortly   after the divorce, Mother moved to California, but returned to Kentucky in October, 2003.  Father and Daughter resisted her efforts to resume regular visitation and Family Court ordered the entire family – Mother and Father and their new spouses – and all the children to counseling.

Mother’s timesharing resumed, but in late 2009, Daughter expressed her desire to stop spending time with Mother.  Mother filed for additional counseling and the parties agreed to consult a different counselor, who recommended reconciliation counseling.  Mother requested Family Court to enter a counseling order, which Father opposed.  Prior to hearing on the motion for counseling, Father filed a notice of intent to relocate Daughter’s residence, but failed to file a motion for permission to relocate or to modify custody or timesharing.  After a hearing on Mother’s motion, Mother and Daughter attended one unsuccessful counseling session.  Father refused to force Daughter to attend another session, and Mother filed a motion to compliance with the counseling order.

The therapist testified at the hearing on Mother’s motion for compliance and cautioned against forcing the Daughter into unwanted counseling.  In two in camera interviews, Daughter expressed distrust of Mother.  Mother’s motion was eventually denied and counseling discontinued.

When Mother subsequently learned that Father and Daughter had moved to Texas, she asked Family Court to require return of Daughter to Kentucky and compliance with order to reconciliation counseling.  Father responded that he and Daughter had dual residences in Kentucky and Texas and that his contacts with Kentucky were insufficient to trigger requirements of Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008).  After a hearing, the Family Court denied Mother’s motion for return of child to Kentucky, denied her motion for compliance with order of joint custody and denied her request for continued reconciliation counseling. This appeal followed.

First, the Court disposed of Father’s contention that the Order was not final and appealable.  Citing several cases supporting continuing jurisdiction in custody matter, the Court concluded there is ample authority to allow review of this order because it relates to Daughter’s care and custody.

Next the Court addressed Mother’s claim that the Family Court abused its discretion in denying her motion to enforce its order for reconciliation counseling.  Finding that the court’s decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles, termination of counseling was not an abuse of discretion because evidence supported the conclusion that reconciliation counseling would be unsuccessful and possibly counterproductive.

With respect to relocation, custody, and timesharing issues, the Court noted that Family Court equated a jurisdictional question (whether there was sufficient connection with Texas to divest Fayette Court of jurisdiction) with the factual question actually before the court (whether Father and Daughter had relocated to Texas, interfering with Mother’s joint custody and timesharing rights).  It was error for the Court to use the UCCJEA to resolve substantive factual questions, and no jurisdictional issue was before the court.  The Family Court’s failure to enforce the custody and timesharing order opened the door for Father to engage in the forum shopping the Act seeks to avoid.

The Court of Appeals agreed with Mother’s argument that Family Court should have applied Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008). Pennington defines “custody,” “visitation” and “timesharing.”  In addition, Pennington clarifies that a relocation is not simply a quantitative, but a qualitative, assessment, and examines whether the facts and circumstances impact the custodial or visitation/timesharing rights of the parent who is not moving.  A cross-country relocation such as this must not occur unless it is in the child’s best interest.  Such a decision, absent court approval, must be made by both joint custodians.  Because the joint custodians failed to agree, the trial court should have conducted a hearing and decided the issue according to the child’s best interest.  Family Court failed to do so.

Finally, the Court of Appeals discusses procedural issues at great length, particularly which party bears the burden of proving what is in Daughter’s best interest; In the case at bar, Father filed no motion to modify custody or timesharing, and Mother objected to the relocation and sought enforcement of the existing order.  The Family Court did not address Father’s unilateral decision-making, nor did it address the best interest question.  Therefore, the case is reversed and remanded for a hearing in accordance with Pennington.

Upon remand, if Father desires a change with sole custody vested in him, he must bear the burden of persuading the Family Court that Daughter’s best interests require such a change.  If Family Court agrees, Father may relocate without Mother’s approval.  If Father fails to meet his burden that relocation is in child’s best interests, the original custody and timesharing order must be enforced.

After a long discussion of the burden of proof, the Court interpreted Pennington as holding that, between joint custodians, and absent the non-primary residential parent’s motion to modify timesharing, the relocating parent always bears the burden of providing relocation is in the best interests of the child.

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

Druen v. Miller, Ky COA, Interlocutory Nature of Decial of Motion to Dismiss

Melissa Ann Druen v. Paula Jean Miller

No. 2011-CA-000278-ME

Published: Opinion Dismissing

County: Jefferson 

Appellant, Melissa Ann Druen, appealed from an order denying her motion to dismiss Paula Jean Miller’s petition for custody of Druen’s biological minor child.

Druen and Miller were involved in a romantic relationship and bought a home together in 1998.  Druen became pregnant in 2002 after artificial insemination from an unknown donor and later gave birth.  The parties separated in 2007.  In 2010, Miller filed a petition for custody of the child based on her allegation that she was the defacto custodian since the child had lived with her since the separation and that Druen only exercised visitation rights.

Druen filed a motion to dismiss stating that Miller lacked standing to pursue custody.  Before the hearing on that issue, the trial court permitted Miller to amend her petition to include an alternative claim that Druen waived her parental rights.  In July, 2010, Druen’s motion to dismiss was denied, finding that Miller had standing to pursue custody under a claim of waiver of parental rights.  The Order was designated final and appealable only in regard to standing.

Druen then filed this appeal, seeking reversal of the trial court’s order holding that Miller has standing to pursue custody.  The Court of Appeals found the order to be interlocutory and not appealable.

CR 54.01 provides that “a final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.”  CR 54.02 says that if more than one claim for relief is sought, “the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay.”  Recital of the finality language will not render appealable an order which is interlocutory by its very nature.

Druen seeks appeal of an order denying her motion to dismiss Miller’s petition on the basis that Miller lacked standing to seek custody.  The order, however, does not determine the custody issue and is not final because it did not adjudicate all the rights of the parties.  The order granted Miller temporary joint custody and temporary child support but these are also interlocutory and non-appealable.

The Court of Appeals held that this appeal is from an interlocutory order and not properly before the court.  The appeal is dismissed.

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

 

CHFS v. Hon. Garber and Hon. Bowles, Ky COA, Writs of Mandamus and Prohibition

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Eleanore Garber, et al.

and

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Jerry J. Bowles, et al.

No. 2010-CA-0012260OA and

No. 2010-CA-001351-OA

Published:  Petitions granted

County:     Jefferson

 

        The Cabinet for Health and Family Services filed original actions in the Court of Appeals after two divisions of Jefferson Family Court entered orders in domestic violence proceedings directing the Cabinet to investigate certain individuals for the risk of dependency, neglect, or abuse of children.

 

        The Cabinet argued that the Family Court acted outside its jurisdiction and violated the separation of powers doctrine by ordering an investigation instead of reporting suspected child dependency, neglect, or abuse pursuant to KRS 620.030 and KRS 620.040.  By ordering an investigation, the Family Court usurped the executive function of the Cabinet to determine the necessity of an investigation and, if warranted, initiating the investigation.

 

        The Cabinet also asserts that it is entitled to a writ based on the fact that the Family Court was acting within its jurisdiction, but erroneously, and there is no adequate remedy by appeal and great and irreparable injury will result.  Since the Cabinet subjected itself to contempt proceedings, however, it has an adequate remedy by appeal.

 

By ordering the Cabinet to conduct an investigation, the Family Court acted outside its jurisdiction and violated the separation of powers of Section 28 of the Kentucky Constitution.  Division Five of Jefferson Family Court is prohibited from enforcing its Order of June 15, 2010 and Division Six is prohibited from enforcing its July 8, 2010 Order.

 

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

Hudson v. Hudson, Ky COA, Modification of Child Support, Standard of Review

Hudson v. Hudson, 2009-CA-002392-ME

Published:   Affirming

County:  Jefferson

 

        Mother appealed from TC Order increasing Father’s child support.

 

        Parties were divorced in 1996 and, in 2009, Mother filed a motion to increase Father’s child support obligation.  Mother had become disabled and Father’s income had increased since the divorce.  Father objected to Mother’s calculation because the child received Social Security benefits due to Mother’s disability which he contended constituted an independent source of income.

 

        Trial Court agreed the benefits should be considered an independent source of income and to require Father to pay full guideline amount would be a windfall to child. The court concluded deviation from guidelines was appropriate, deducted the benefit from the base support and apportioned the remainder according to incomes.

 

        The Court of Appeals found that Mother failed to comply with CR 76.12(4)(c)(v) requiring a reference to the record where the claimed error was preserved.  If the error had been preserved, it would have been reviewed for abuse of discretion.  If an error is not preserved sufficiently, CR 61.02, or appellant fails to comply with CR 76.12(4)(c)(v), a different standard applies, which is to avert a manifest injustice.  The Court of Appeals applied the manifest injustice standard of review and found nothing in the record to indicate the child would suffer an injustice as a result of the trial court’s order.

 

        It is important to note that subsequent to the trial court’s order in this case, the Kentucky Supreme Court reached the opposite result in Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010), holding that the parent who is not the disabled parent through whom the child receives Social Security benefits is not entitled to a credit against child support payments.

 

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

Mitchell v. Mitchell, Ky COA, Civil Procedure, Attorney Fees

Mitchell v. Mitchell, 2009-CA-001856-MR

Published:   Reversing

County: Fayette

         Appellant appealed from Circuit Court Order awarding Appellee attorney fees, expert fees, and costs incurred as a result of his motion to modify maintenance.  The CA agreed with argument that TC lacked jurisdiction to enter the Order and reversed.

         Parties were divorced in 1990 after 24-year marriage.  In the divorce agreement, Appellant agreed to pay $3,000 a month in maintenance until Appellee remarried or one of the parties died.  The agreement provided that if Appellee became more employable due to education she received with appellant’s financial assistance, this could be grounds for modification.  Appellee earned a bachelor’s degree in 1995.  In October, 2008, Appellant filed a motion to modify maintenance.

         June 9, 2009, Appellee filed a motion for attorney fees and costs related to her defense of the motion to modify maintenance.  On June 22, 2009, TC heard testimony on both motions.

         On June 30, 2009, TC entered order finding that Appellant failed to establish sufficient grounds to support modification and denied the motion, and indicated the ruling was final and appealable.  No appeal was taken.  Appellee’s motion for fees was not addressed.

         On July 1, 2009, Appellee’s attorney emailed the judge’s law clerk inquiring how to proceed with respect to the motion for fees, and on July 8, 2009 the clerk responded “I am on this, give me a day or two.”

        On August 13, 2009, the judge’s secretary informed Appellant about the ex parte communication between Appellee’s attorney and the law clerk.  Appellant’s counsel was advised that Appellee’s counsel had been instructed to file an attorney fee affidavit.  Appellant’s attorney would then have a week to file a response, after which the judge would hear arguments on the motion for fees on September 4, 2009.

        Appellant filed an objection to the TC’s consideration of the motion for fees, arguing that the court lacked jurisdiction to award fees and costs at this juncture and that such an award was unwarranted.  On September 4, 2009 the TC heard arguments from counsel, and on September 16, 2009 awarded Appellee $19,161.80 in attorney fees.  The TC found Appellant’s objection  on “technical jurisdictional grounds” to be without merit and stated “… the June 9 motion was not ruled on until this date.”  Thereafter, Appellant filed this appeal.

        Appellant argued on appeal that the TC lacked jurisdiction to rule on Appellee’s motion for fees and costs, that Appellant was prejudiced by the TC staff’s ex parte communication with Appellee’s counsel, and that the award of fees and costs was unwarranted.

         CA agreed with Appellant that the TC’s order denying his motion to modify was final and therefore the TC had lost jurisdiction to enter the subsequent order awarding fees because Appellee failed to timely request additional findings and modification of the Order pursuant to CR 52.02.  The CA concluded the Order was inherently final because the case addressed a single claim which was the motion to modify maintenance.  Appellee’s motion for fees did not constitute a separate claim.

          Because the Order was final, there was a ten-day window during which the TC could modify or Appellee could move for modification of the ruling to include findings and a ruling on her motion for attorney fees.  Appellee did not file a proper post-judgment motion.  The ex parte communication between Appellee’s counsel and the judge’s law clerk was insufficient to toll the time for amendment.  Therefore, entry of the order awarding Appellee attorney fees constitutes reversible error. 

         Appellant’s remaining two arguments were not addressed because the decision on the jurisdictional argument is determinative of the case as a whole.

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

No Published Family Law Cases From Kentucky Supreme Court Today

Discretionary review was denied in Hines v. Carpenter and the Court of Appeals Opinion was ordered not to be published. That case concerned a supersedeas bond and damages for delay. The digest has been updated to reflect it is not to be published.

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

UPDATE: The Kentucky Supreme Court denied discretionary review and ordered this case not to be published.

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

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

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

One To Be Published Ky COA Family Law Decision Released 2/6/09; None Released 1/30/09 Due To Weather

A digest of Hines v. Carpenter will be posted shortly. It affirms the denial of motion to compel lump sum payment for damages where father posted supersedeas bond on judgment for back child support.

Johnson v. Johnson (KY) No 15% Change In Child Support Not Preserved For Appeal

Johnson v. Johnson, 232 S.W.3d 571 (Ky. App. 2007)

Dad appealed an order recalculating and increasing his child support. On appeal, Dad argued that it was error for the TC to review child support because Mom did not show a 15% change in the amount of child support due. Also, Dad argued that the TC abused its discretion in raising his child support because mom didn’t show a 15% increase. CA held the TC erred in not making any findings of fact but Dad failed to request the court make such findings and therefore failed to preserve the error for appeal.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Appeals: Bifurcated Issues

The Family Law Prof Blog posts Case Law Development: Bifurcating Judgment Precludes Appeal:

A recent inquiry from a reader asked whether bifurcated judgments in divorce actions may be separately appealed. Here is at least one court's answer...
Rather than simply enter temporary orders, a divorce court will sometimes bifurcate a divorce judgment, granting divorce or child custody for example, and reserving judgment of financial issues pending more factual development or hearings. However, the Illinois court has held that such a bifurcated judgment is not final for purposes of appeal. In this case, the trial judge entered a judgment of dissolution, divided the marital property, granted sole custody of the children to petitioner, set child support of $1,306.95 a month, and barred respondent from receiving maintenance. However, it "reserved" the issues of visitation, the children's post-high-school educational expenses, and petitioner's maintenance. Raising the issue sua sponte, the Illinois Court of Appeals held that "The reservation of issues here deprives us of jurisdiction over this appeal." -- No bifurcating appeals.
Mardjetko v. Mardjetko, 2007 Ill. App. Lexis 3 (January 5, 2007)
Opinion on the web (last visited January 15, 2007 bgf)

I had asked Professor Barbara Glesner Fines, Ruby M. Hulen Professor of Law, University of Missouri Kansas City to keep a "heads up" for cases that may give insight on whether issues may be bifurcated on a motion for discretionary review, so that some issues could be remanded to the trial court for a new trial while others go up on issues of law to a state's highest court. I very much appreciate her keeping this on her radar.

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.

A Suggestion For Needed Blawgs

I came across California Supreme Court Pending Civil Cases Blog, and thought what a great idea. It is very helpful for practitioners to know particular issues of law are before a state's highest court, the outcome of which may change the law in other cases at the trial court level. Denise Howell's Bag and Baggage Blog posts about a feature of the site that allows you to request email updates for notification of future events in the case. Any takers to do that in other states, including Kentucky?

Proposed Civil Rule Change: Where to File Family Court Appeal

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

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

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

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

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

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

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

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

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

Thorn v. Commonwealth of Kentucky and Shirley Robinson, 181 SW3d 560 (Ky.App., 2005)

Thorn v. Commonwealth of Kentucky and Shirley Robinson,
181 SW3d 560 (Ky.App., 2005)
Appeals from Family Court are to be taken to Court of Appeals.

Appeals from Family Court are to be taken to Court of Appeals. KRS 620.155 is
intended for use in counties that do not have a family court. When two statutes are in conflict, they are to be construed to give meaning to both.

Clark v. Com., Cabinet for Health and Family Services, 170 SW3d 426 (Ky.App., 2005)

Clark v. Com., Cabinet for Health and Family Services,
170 SW3d 426 (Ky.App., 2005)
Premature notice of appeal from an intermediate order may
proceed even though a second notice of appeal was not filed
from the final order.