Divorce Law Journal

Non-marital tracing and maintenance - lack of efforts to secure employment does not defeat maintenance claim, published opinion from Ky Court of Appeals October 27, 2016

SMITH V. SMITH

Husband argued Family Court erred in awarding Wife a non-marital interest in the marital residence because she did not produce a copy of the CD with the funds for the basis of the non-marital claim or any other documentation. The Court of Appeals affirms finding no error as there was testimony about the non-marital nature of the CD sufficient to establish Wife’s claim and the Brandenburg formula was properly used to calculate the division of equity due to the home’s increase in value.

Husband also argued that the Family Court erred in awarding Wife spousal maintenance as she had sufficient property to meet her needs and had not attempted to obtain employment. The Court of Appeals again affirms the Family Court finding no error as the Court property considered the KRS 403.200(2) factors noting “efforts to secure employment” are not a part of KRS 403.200(2).

Digested by Elizabeth M. Howell

Judge's Recusal in Divorce Action Requires Recusal in Domestic Violence Action - Published Family Law Opinion from Ky. Court of Appeals

BOONE V.BOONE

Judge recused herself from a divorce action, after a DVO hearing, but before issuing an Order dismissing the DVO. Wife then filed motions arguing Judge should be recused from the DV case as well because she had recused herself in the divorce. The Judge denied Wife’s motions. Wife appealed arguing that “the court abused its discretion in denying her Petition for a DVO” and that the Judge “should have disqualified herself with respect to the DVO.”

The court first turns to the recusal issue. The Court of Appeals holds that when the Judge disqualified herself from the divorce, she lost jurisdiction in the DV matter. The Court of Appeals bases its decision on “very purpose” of family courts – the one family, one Judge concept..  The divorce case and the DVO were still ongoing at the time of the Judge’s recusal, therefore, recusal in one required recusal in all. As the Judge had no jurisdiction at the time she entered the Order dismissing the DVO, the Order Wife appealed from is void.

Although the DVO dismissal is void, the Court of Appeals notes that the trial court misconstrued KRS 403.720, noting Kentucky Courts liberally construe domestic violence statutes to allow victims who are reasonably in fear of immediate physical injury relief. They clarify that even potential psychological damage is encompassed by the domestic violence statutes.

Digested by Elizabeth M. Howell

Not Error To Fail To Dismiss Domestic Violence Action Upon Victim's Request: Ky Court of Appeals Published Opinion September 30, 2016

MOORE V. MOORE

Trial Court held a bifurcated DVO hearing on a severe domestic violence incident between Husband and Wife. At the first hearing, Wife testified she was afraid of Husband and gave detailed testimony about the violent incident. After contact with Husband’s family, at the second hearing, Wife read a statement asking the Trial Court to dismiss the matter. The Trial Court issued a DVO against husband. Husband appealed arguing that “the trial court abused its discretion when it failed to grant appellee’s  [Wife’s] motion to voluntarily dismiss the DVO.”

The rules for dismissal are set forth in CR 41.01. Automatic dismissal shall be granted when the Petitioner files “a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs” or files “a stipulation of dismissal signed by all parties who have appeared in the action.” CR 41.01(1) The Court of Appeals holds that this case did not fall under CR 41.01(1), because Wife never filed anything, she simply read a statement into the record.

CR 41.01(2) allows dismissal at the discretion of the trial court. Factors the Trial Court should consider before granting the dismissal are set forth in the Supreme Court case of Sublett v. Hall. Sublett v. Hall, 589 S.W.2d 888 (Ky. 1979). Holding that domestic violence cases “involve different considerations than general civil cases” the Court of Appeals held that is was proper for the Trial Court to consider factors outside of those listed in Sublett. Thus, the Trial Court did not abuse its discretion by  denying Wife’s motion to dismiss the action noting that the Trial Court found Wife had contact with Husband’s family which “dramatically changed” her position.

Husband also argues that the Trial Court erred “when it found sufficient evidence in the record that domestic violence ‘may again occur’ under KRS403.740(1).” The Court of Appeals first reiterates that “a singular act is never sufficient to support a finding that domestic violence may recur without some additional indication, however small, that domestic violence may recur,” but ultimately holds that the Trial Court did not err in finding sufficient evidence domestic violence might occur again given the severity of the underlying event, as well as fact that the parties lived together, and Husband’s failure to obtain treatment for substance abuse.

Digested by Elizabeth M. Howell

Husband's law firm contingency contracts are not marital property; post-nuptial agreement enforced; where marital and nonmarital property were used to purchase a residence that is ultimately worth less than the total contibutions, both funds should share

Grasch v. Grasch . A digest of this published opinion from the Ky Court of Appeals today will follow in a couple of weeks. We are swamped!

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

Is non-modifiable maintenance modifiable? Unpublished opinion from Ky Court of Appeals

We do not usually post unpublished opinions from the Ky Court of Appeals but Geralds v. Geralds  is notable, giving guidance to the bench and bar about an issue that has perplexed us since Woodson v. Woodson in 2011.  Geralds holds that agreements for non-modifiable maintenance are enforceable. We don't know why the opinion was designated not to be published, but hope the court changes its mind. 

UCCJEA: What to do when original state erroneously retains continuing jurisdicition? Ky Court of Appeals Published Opinion

BALL V. MCGOWAN

A Nevada court entered a custody order, after which child and Father moved to Kentucky. Child did not return to Nevada after moving to Kentucky. Several years later, Mother filed an action for custody in Nevada, while Father filed an action for custody in Kentucky. Pursuant to the UCCJEA, the Kentucky trial court contacted the Nevada trial court to determine whether or not Nevada retained exclusive, continuing jurisdiction over the custodial matter. Nevada, as the state that made the initial custody determination, claimed exclusive continuing jurisdiction over the matter. Thus, the Kentucky trial court dismissed the Kentucky case. Father appealed arguing the Kentucky trial court erred.

The Court of Appeals conducts a detailed UCCJEA analysis utilizing KRS 403.822 and the corresponding Nevada statute. The court concludes Nevada erred in claims exclusive, continuing jurisdiction as only one parent, and not the child, remained significantly connected to Nevada. However, as the UCCJEA makes the original state “the sole determinant of whether jurisdiction continues”, the Court of Appeals holds it is without the authority to disturb the Nevada court’s decision that it retained exclusive, continuing jurisdiction. 

The Court of Appeals continues its analysis, finding that under the UCCJEA, as set forth in KRS 403.834(1), the Kentucky court can request the Nevada court decline jurisdiction because it is an “inconvenient forum.” As the Kentucky trial court failed to request the Nevada court decline jurisdiction, the Court of Appeals affirms the trial court’s ruling that Nevada has continuing, exclusive jurisdiction, but reverses the dismissal of the petition to allow the trial court to contact the Nevada court and request it decline jurisdiction.

Digested by Elizabeth M. Howell.

 

New company was "alter ego" of husband and subject to garnishment of divorce debt for wife's attorney fees - Published Opinion from Ky Court of Appeals July 15, 2016

LEE, ET AL. V. LEE, ET AL.

Wife obtained a common law judgment for attorney fees against Husband and his company in divorce action. Subsequently, Husband formed a new company. Wife obtained an order of garnishment for the new company’s bank account. Husband filed a motion to quash, which was denied by the family court. The family court found that the new company was Husband’s “alter ego.” Husband appealed arguing the garnishment was void ab initio because it was ordered before Wife had any final judgment against the new company. The Court of Appeals affirmed the family court’s order holding that the family court acted properly under KRS 425.501 in finding the new company was “a judgment debtor in its capacity as an ‘alter ego’” of Husband.

Digested by Elizabeth M. Howell.

Child Custody Evaluators Entitled to Quasi-judicial Immunity, Published Opinion from Ky Court of Appeals June 17, 2016

FEINBERG V. KEETON

2014-CA-001656-MR

TO BE PUBLISHED

CARTER

http://opinions.kycourts.net/coa/2014-CA-001656.pdf

Mother sued custodial evaluator for providing a false diagnosis regarding “parental alienation.” Trial court did not dismiss case after custodial evaluator made a claim of quasi-judicial immunity. The Court of Appeals holds that a custodial evaluator is entitled to quasi-judicial immunity and instructs the trial court to dismiss the complaint. The Court of Appeals affirms prior precedent stating “custody evaluators are entitled to quasi-judicial immunity as a means to protect the integrity of the judicial process.”

Digested by Elizabeth M. Howell

Adoption and Termination of Parental Rights, Published Opinion from Ky Court of Appeals

M.L.W. V. HEART TO HOME ADOPTION AGENCY, ET AL.

Mother consented to adoption of her three children. Father contested the termination of his parental rights and appealed arguing that the findings of fact were insufficient to terminate his rights. The trial court stated that termination was in the children’s best interest, but did not make any findings supporting its conclusion. Moreover, the GAL improperly provided testimony as opposed to representing the best interests of the children; the Cabinet was not included as a party to the proceeding as required by statute; and, the adoption placement agency made no efforts to return the children to Father. Therefore, the Court of Appeals vacated the trial court’s order and remanded the case for further proceedings.

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

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

Injunction ordering father not to disseminate private emails affirmed by Ky Court of Appeals in a published opinion

WEDDING V. HARMON, ET AL.

Father shared private co-parenting emails between the parties (Mother and Father) with teachers, other parents, and relatives. After holding a hearing, the trial court entered an injunction ordering Father not to forward others private email communications between the parties. Father appealed arguing the order unconstitutionally infringed his right to freedom of speech. The Court of Appeals applies the analysis set forth in Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Ky. 2010) and affirmed the trial court because the injunction on Father’s speech was 1) narrowly tailored, 2) made after a final adjudication, 3)  prohibited only unprotected speech, 4) not subjected to heightened scrutiny, and 5) in the best interest of the children.  

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 Dependency Opinion from Ky Court of Appeals

E.Y. V. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL.

Mother appealed trial court’s dependency adjudication arguing that as dependency was not alleged in the Petition, the trial court did not have the authority to make a finding of dependency. The mother did not raise the issue at the trial court level, so the Court of Appeals reviews under the palpable error standard, holding that a Judge has the authority to find dependency in a neglect hearing as long as the statutory requirements for dependency are met. The Court of Appeals views dependency as “a lesser-included offense of neglect.”

Mother also argues that testimony about the Petition was hearsay evidence and should not have been admitted. Social workers without personal knowledge of the events in the Petition testified as to the facts within the Petition. The Court of Appeals holds the social workers’ testimony is an exception to the hearsay rule as all of their testimony was either based on first-hand observations or information in the Cabinet’s records, which falls under the public record exception to hearsay. KRE 803(8).

Mother makes a number of additional arguments including that it was an error for the trial court to consider the neglect case of her other minor child, the court’s findings were insufficient to support removal and less restrictive alternatives than removal were available. The Court of Appeals, finding no errors, affirms the trial court’s order.

Digested by Elizabeth M. Howell.

 

Where Cabinet Place Child With Foster Parents, Foster Parents Lack DeFacto Custodian Standing - Published Opinion From Ky Court of Appeals

WELLS, ET AL. V. TOYE

Foster parents  appealed from a Circuit Court decision finding they lacked standing to qualify as de facto custodians. The Appellate Court affirms the Circuit Court holding that the rule set forth in Swiss applies in this case. Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 797 (Ky. App. 2001). Foster parents “may not use the de facto custodian statutes to challenge the cabinet’s custody of the child where the child was placed with the foster parents by the cabinet.”

Digested by Elizabeth M. Howell

Published Opinion from Ky Supreme Court - Same Sex Partner Permitted to Intervene In Step-Father Adoption Case

A. H. V. W.R.L. AND M.L.

“Questions Presented: Family Law. Custody. Same-Sex Relationship. Step-Parent Adoption. Intervention of Right. Trial court properly
allowed the child’s biological mother’s ex-partner, who allegedly co-parented the child for seven years and has a pending custody
petition, to intervene in the step-parent adoption case that would have declared mother’s husband to be the child’s second legal parent.”

Same sex parent (“Amy”) filed a motion to intervene in a step-father’s adoption proceeding. The Appellate Court held that Amy did not have standing to intervene in the custody case appeals. The Supreme Court accepted discretionary review and reversed the Court of Appeals opinion and reinstated the trial court’s order allowing Amy to intervene.

The Supreme Court starts by noting that intervention and standing are two distinct concepts and were misapplied by the Court of Appeals. The Supreme Court does not clarify the distinction between standing and intervention as standing is not a requirement for intervention in an adopting proceeding.

The Supreme Court holds that Amy is entitled to intervention of right under CR 24.01 which allows anyone with a “cognizable legal interest” to intervene in an action. As Amy has an interest in her ongoing relationship with the child, supported by a plethora of facts about her participation in the child’s life, she clearly satisfies the requirements of CR 24.01. The Supreme Court concludes the trial court’s decision was logical and not clearly erroneous, noting courts are granted great discretion in both determining the facts in domestic cases and efficiently managing their dockets.

The Supreme Court also discuss CR 24.02 which allows permissive intervention. A trial court has the authority to allow intervention under CR 24.02 even in cases where the individual intervening fails to meet the standards set forth in CR 24.01.

See our prior post on the overturned Court of Appeals Opinion.

Digested by Elizabeth M. Howell.

 

Published Family Law Opinion from Ky Supreme Court - Settlement Agreement Not Incorporated in Divorce Decree

LINDA DAVIS V. KAREN DAVIS, ET AL.

“Questions Presented: Family Law. Marital Dissolution. Property Settlement Agreements. Whether a lack of reference to a filed property settlement agreement in a dissolution decree voids such an agreement.”

Husband and wife (“Linda”) entered into a Marital Settlement Agreement, but the Decree of Dissolution failed to incorporate the Agreement. A portion of the Agreement required Husband to maintain his life insurance policy with Linda as the beneficiary. Husband subsequently changed the beneficiary to his new wife (Karen) and then died. Linda and Karen filed competing claims against Husband’s life insurance.

The Supreme Court starts by stating it is undisputed that the MSA cannot be enforced as a judgment by the family court, as it failed to meet the requirements set forth in KRS 403.180(1). Generally, contracts between husband and wife are enforced. Karen argues that contracts between husband and wife executed “in contemplation of dissolution of marriage” are an exception to this rule. The Supreme Court disagrees holding that there is no law forbidding a court of general jurisdiction to enforce a non-incorporated MSA between spouses. KRS 403.180 does not void non-incorporated MSAs, nor does it foreclose an action in a court of general jurisdiction. The court concludes that while the MSA between husband and Linda is not enforceable as a judgement of family court, it is enforceable as a contract. Therefore, Linda may pursue all equitable claims and remedies available at common law, including unjust enrichment and the imposition of a constructive trust. However, the circuit court must consider all elements of a contract claim and all applicable defenses, whereas a family court would have only considered the conscionability of the agreement had it been duly incorporated in the divorce decree.

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.

Threat of Suicide May Constitute Domestic Violence - Pulished Opinion, Ky Court of Appeals

CRABTREE V. CRABTREE

The Trial Court did not abuse its discretion in finding domestic violence occurred and was likely to occur again where husband threatened suicide multiple times in front of his wife and children. Husband argued that threatening to kill himself was insufficient to establish that he committed domestic violence and abuse. The Appellate Court cites an unpublished case that while a suicide threat is “not directed at hurting any family members, the inevitable consequence of such a statement is to terrorize the recipients of the information.” The Appellate Court held that the Trial Court’s DVO was proper and affirmed.

Digested by Elizabeth M. Howell.

Published Family Law Opinion From Ky Court of Appeals: Right to Counsel in Termination of Parental Rights/Conflict of Interest

T.W. V. CABINET FOR HEALTH AND FAMILY SERVICES

Mother and father's parental rights were terminated involuntarily by trial court after a hearing. While Mother and Father had counsel present at the hearing, counsel believed he had a conflict of interest and did not participate in the hearing. Although counsel asked to withdraw, the trial court did not allow his withdrawal and permitted the hearing to continue. The witnesses testifying on behalf of the Cabinet were not cross-examined. While counsel subsequently withdrew and separate counsel was appointed for mother and father, the witnesses were never subject to cross-examination.

The Court of Appeals holds that counsel's conflict of interest "constituted ineffective assistance of counsel requiring a new termination hearing." The court looks to KRS 625.080(3) and Z.T. v. M.T., holding that "in this Commonwealth, it is a fundamental right of parents facing termination of their parental rights to have counsel not only present but also conflict-free." Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky.App. 2008). As mother and father were denied their statutory right to counsel because counsel had an actual conflict of interest, the court holds that prejudice is presumed. Therefore, the court reverses and remands the trial court's order providing that Mother and Father should be allowed a new termination hearing.

Digested by Elizabeth M. Howell

 

Published Family Law Opinion from Ky Court of Appeals: DVO, Parenting Time, Writs,and Transfer of DVO to Court Where Custody Action Pending

PATTERSON V. WINCHESTER

A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36.

Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO, and mandating the Whitley Court honor the DVO.

The Court of Appeals first sets forth the standard for a writ of prohibition, holding a writ can only be granted when "(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted." Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

The Court of Appeals declined to grant Mother's request for writs preventing the Whitley Court from enforcing its parenting time order and  vacating, altering or amending the Fayette DVO. The Court of Appeals holds that there is no merit to Mother's argument as the Whitley Court has jurisdiction over custody and parenting time, and Mother has the right to an appeal should the Whitley Court act erroneously.

The Court of Appeals also declined to grant a writ mandating the Whitley Court honor the DVO, holding the DVO does not take precedence over the earlier custody and visitation order.

The Court of Appeals adds that the Fayette Court should have transferred the DVO case to Whitley, stating that "the best practice is for the court where the DVO was filed to transfer the DVO action to the court where the custody action is already pending."

Digested by Elizabeth M. Howell

 

Prior to Division of Teacher Retirement Court Must Consider the Effect of Social Security Contributions or Offsets: Ky Court of Appeals Publsihed Opinion

SHOWN V. SHOWN

In a previous related case, the Supreme Court held that Husband’s Kentucky teacher’s retirement account was considered marital property under KRS 403.190(1). Shown v. Shown, 233 S.W.3d 718 (Ky. 2007). Subsequently, the trial court divided the marital portion of husband’s retirement without consideration of the complex financial calculations used to make the distribution. In fact, the court took no proof on the issue and granted wife 50% of the marital portion of the account. Husband appealed arguing it was inequitable for the trial court to divide his teacher’s retirement account without considering its unique characteristics, primarily the fact that his teacher’s retirement is a substitution for social security. The Appellate Court agreed, reversing and remanding the matter to the trial court so that it can exercise its KRS 403.190 discretion and take expert testimony to "compute the present value of a Social Security benefit that Robert would have received had he contributed to Social Security. That value should be deducted from the present value of Robert's teachers' retirement, prior to division of the parties' pension plans."

Digested by Elizabeth M. Howell.

 

IRA Beneficiary Designation in Favor of Former Spouse: Ky Supreme Court Published Opinion

RUTH ANN SADLER V. BARBARA LOIS VAN BUSKIRK

Husband died many years after his divorce, but despite his remarriage, he had not removed his former wife as the beneficiary of his IRA. In the parties’ marital settlement agreement they had agreed to make “no claim upon any interest owned by the other, now or in the future” of their Individual Retirement Accounts.

The court looks to the holdings made in Ping, Hughes and Napier and extends their precedent to the retirement account context. The Supreme Court holds a divorce alone does not give rise to a presumption an ex-spouse is removed as a beneficiary of a retirement account; however, parties have the power to divest an interest of a beneficiary by agreement. The agreement must be clear and unambiguous and a general waiver is not enough. In this case, the parties clearly and unambiguously agreed to assign the exclusive ownership of the IRA to husband. Therefore, the former wife has no beneficiary interest in the IRA.

Digested by Elizabeth M. Howell.

 

Criminal Contempt for Violation of Statute and FCRPP and Standard of Review: Ky Supreme Court Published Opinion

CABINET FOR HEALTH AND FAMILY SERVICES V. J.M.G., ET AL.

In the midst of a lengthy dependency, neglect, and abuse, case the family court held CHFS in contempt for failure to file the required case progress report per KRS 620.240 and failure to immediately obtain a pretrial conference date per FCRPP 34(1).

The Supreme Court begins its opinion with a lengthy explanation clarifying difference between civil and criminal contempt. Civil contempt is generally a sanction sought by the adverse party and subject to purgation through compliance. On the other hand, criminal contempt is imposed primarily to vindicate the authority of the court. Typically, a criminal contempt sanction is only appropriate if there is proof that a lawful and reasonably specific order was willfully violated.

The Supreme Court goes on to clarify that there could be a situation in which absent a specific duty set forth in a court order, a rule or statute creates a duty enforceable by contempt holding, “Where a rule or a procedural statute creates a duty clearly applicable to the instant proceeding and the obliged party violates the duty under circumstances that could reasonably be thought to show beyond a reasonable doubt that the violation was willful or openly disrespectful, then criminal contempt may well be an appropriate sanction.”

In Kentucky, show cause orders are typically used to initiate both criminal and civil contempt proceedings. The Supreme Court addresses the due process requirements a court must consider when exercising its power of criminal contempt. The court has nearly unlimited discretion in using contempt to assure court proceedings are orderly and proper. When a petty contemptuous action is committed in the court’s presence, notice and the opportunity to be hard are enough to satisfy due process concerns. Alternatively, if an alleged contemptuous action occurs outside of court, or is ambiguous, the show cause hearing should be conducted with the “safeguards constitutionally guaranteed for ordinary criminal trials.”

The Supreme Court also addresses the standard of review Appellate Courts should use for contempt. The standard of review used by the Court of Appeals in this case, granting the trial court nearly unlimited discretion, was not appropriate. When a court imposes substantial criminal penalties, the ordinary criminal judgment standard of review should be used by Appellate Courts.

Ultimately, the Supreme Court holds that the trial court’s order did not clearly apply the beyond a reasonable doubt standard, there was not sufficient evidence of willful violation of FCRPP 34(1), and there was insufficient evidence of a willful violation of KRS 620.240. Therefore, the Supreme Court remands the matter to the trial court for additional proceedings.

Family law and civil practitioners should note that in its dicta the Supreme Court urges the bench and bar to “become more mindful of criminal contempt’s constitutional ramifications.”

Digested by Elizabeth M. Howell.

 

Notice of Witnesses Required in Termanation of Parental Rights Proceeding: Ky Supreme Court Published Opinion

CABINET FOR HEALTH AND FAMILY SERVICES V. S.H,; V.N.M.J.R.N., A CHILD, ET AL.

The family court held a termination of parental rights hearing allowing a social worker to testify on behalf of CFHS with no prior notice to Mother. Mother objected arguing FCRPP 7(1) applied to a termination of parental rights hearing and she should have received 14 days-notice of the witnesses and their testimony. The family court ruled the termination hearing was not a permanent custody hearing and allowed the social worker to testify. Mother appealed the order terminating her parental rights arguing FCRPP 7(1) applied. The Court of Appeals agreed finding the error was not harmless and remanded, reversed and vacated the termination order.

The Ky Supreme Court granted discretionary review. CFHS argued FRCPP 7(1) did not apply because custody was not at issue. The Supreme Court agreed with the Court of Appeals holding that custody is undoubtedly at issue and 7(1) applies to termination proceedings. Although the Supreme Court holds that the language of FRCPP 7(1) gives the trial judge discretion to alter the notice requirement, it agrees with the Court of Appeals that in this case the family court erred by allowing the social worker to testify.

Digested by Elizabeth M. Howell

DeFacto Custodian Published Opinion from Ky Court of Appeals Today

JONES-SWAN v. LUTHER

Biological parents voluntarily placed children in Appellants' care during a custody dispute in which biological father was seeking sole custody in an action for dissolution of marriage. Father was granted sole custody of the children. Appellants returned children to biological father and filed a petition requesting status as de facto custodians under KRS 403.270.

The Court of Appeals held the trial incorrectly interpreted KRS 403.270 as requiring the de facto custodians to have possession of the children when filing a petition for de facto status. A person asking for status as a de facto custodian need not have physical possession of the child, but must have had physical possession, as the primary caregiver and financial support, of the child for at least six months.

However,  this case, the Appellants did not meet the six month requirement because during the time the children were in their care there was an ongoing custody dispute. Under KRS 403.270 “any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.” Thus, the Court of Appeals ultimately affirmed the trial court’s order dismissing Appellants' petition for de facto custodian status.

Digested by Elizabeth M. Howell

 

Unmarried Cohabitants' Division of Real Estate Proceeds - Published Opinion from Ky Court of Appeals Today

PAISLEY V. TALLEY

An unmarried couple owned a home in joint names with a right of survivorship. Boyfriend made the majority of payments on the home mortgage and down payment. The couple’s relationship ended and the boyfriend filed a complaint asking the court to divide the equity in the home in proportion to each parties’ contributions. The trial court found that the parties had no agreement as to the disbursement of the property and divided the equity equally between boyfriend and girlfriend. The Court of Appeals reversed the trial court’s order holding Kentucky law allows joint tenants to be reimbursed for payments towards encumbrances even without  a contract or agreement between the parties.

Digested by Elizabeth M. Howell

 

Ky Court of Appeals Published Opinion Today: Grandparent Custody and Child Support

LAMBERT V. LAMBERT

Maternal grandfather who resided in Kentucky took possession of grandchildren whose mother resided in Pennsylvania, after mother took the children for a visit and never returned to retrieve the children. Grandfather filed a dependency, neglect, and abuse proceeding and was granted temporary custody of the children.

Grandfather subsequently filed a petition for child custody. After a hearing, the court granted custody to grandfather. Mother appealed arguing the court did not have jurisdiction, erred by granting custody without permitting her to present her case, considered inadmissible hearsay, and erred by ordering her to pay child support without evidence of income.

The Court of Appeals looks to KRS 403.822 and holds that the court had jurisdiction to grant grandfather custody. The KRS 403.800(7) definition home state is met as 1) the children had been living in Kentucky for over six consecutive months prior to the filing of the petition, and 2) grandfather was a person acting as a parent as he was awarded temporary custody in the dependency action.  Grandfather did not need to have de facto custodian status to bring an action for child custody.

Next the Court of Appeals looks to mother’s argument that the court erred by granting custody without permitting her to present her case. Mother was present, although under the influence of cocaine, at the custody hearing. As she made no attempt to offer any proof or evidence and did not objection to the guardian ad litem’s motion to grant grandfather custody or the entry of the decree, the alleged error is not considered by the Court of Appeals as it was not preserved for review. Notwithstanding, the court notes a directed verdict was appropriate given the evidence of mother’s conduct.

The court then considers mother’s hearsay argument. Mother argued that it was hearsay for the Kentucky social worker to testify as to information provided by the Pennsylvania social worker. The court finds it was likely inadmissible hearsay, but finds it was a harmless error. Mother also argued it was hearsay for the court to take judicial notice of the dependency action. Judicial notice was proper under KRE 201(b). The Court of Appeals holds this argument has no merit as judicial records are not subject to reasonable dispute and also admissible as public records.

Finally, mother argues that the court erred by ordering her to pay child support without evidence of income. The court imputed mother with minimum wage without hearing any evidence, despite the fact that mother has two other children under the age of three. The Court of Appeals finds the trial court abused its discretion by imputing minimum wage to mother in light of her caring for children under the age of three and order the court to input mother’s income at zero and order the minimum $60 child support award on remand.

Digested by Elizabeth M. Howell

Supervised Visitation Order reversed by Ky Court of Appeals in Published October 2, 2015 Opinion

RYAN V. RYAN

Mother filed a motion to suspend father’s summer visitation time after daughter reported smelling marijuana in the home. Father submitted to a urine test which was negative for all substances, and a hair follicle test which tested positive for marijuana. There was no mechanism for determining the date of marijuana use. At a hearing in front of a domestic relations commissioner, father testified he did not smoke marijuana and rarely drank alcohol. The commissioner recommended Father’s timesharing be reinstated, but the trial court entered an order requiring father’s visitation to be supervised until he had six months of clean drug tests.

Father argues that trial court unreasonably restricted his visitation rights in violation of KRS 403.320(3). The Court of Appeals agrees reversing the judgment of the trial court. In order to modify visitation, the trial court must find that visitation would seriously endanger the child. After considering the evidence, the Court of Appeals finds that there was not sufficient evidence to establish daughter was seriously endangered by Father’s visitation where Father denied smoking or possessing marijuana, immediately submitted to a drug test which came back negative, daughter never saw Father smoking, and daughter did not see drug paraphernalia in the home.

Digested by Elizabeth M. Howell

Published Famiily Law Opinion from Ky Court of Appeals September 11, 2015: Child Custody

 S. E.A. v.  R. J.G.

Child was temporarily removed from Mother’s custody in a DNA action. Father filed separate custody action in which mother stipulated to dependency for the purposes of temporary custody. At a subsequent DNA hearing, the family court determined the child should remain in father’s temporary custody with timesharing to be determined in the custody action. The court-appointed G.A.L. issued a report after the DNA hearing. Then, the family court issued an order giving father sole custody and ordering temporarily removal from mother. The family court stated all further orders would be entered in the custody action.

The parties while preparing for a custody hearing in Kentucky, opened a case in Connecticut. The Kentucky court cancelled the custody hearing upon being advised of the Connecticut action. Subsequently, father filed a motion for permanent custody in both Kentucky actions. The family court granted father permanent custody with a hearing. Upon mother’s motion to vacate, the court ordered  the G.A.L. to submit another report. After the report was filed, the family court entered findings of fact and conclusions of law granting father permanent sole custody relying, almost exclusively, on the G.A.L.’s reports.

The Court of Appeals vacated the family court’s order and remanded the action, holding a full evidentiary hearing was necessary and mother should have been given an opportunity to cross-examine the G.A.L. A hearing in a DNA action, predating a psychiatric evaluation and and G.A.L. reports, cannot serve as a basis for a later order regarding permanent custody.

Digested by Elizabeth M. Howell

Published Divorce Law Opinion from Ky Court of Appeals October 30,2015: Disability Affecting Ability to File for Divorce

RIEHLE V. RIEHLE

Husband, previously adjudicated to be disabled and incompetent, filed for divorce from his wife, who was also his guardian and conservator. The trial court entered an order dismissing husband’s Petition for Dissolution, as “an incompetent person cannot bring or maintain an action for dissolution of marriage” in the Commonwealth of Kentucky. Husband appealed arguing he has standing to bring the dissolution action and should not be limited by the finding of disability and incompetence.

Husband argues that the “lucid interval” doctrine used in certain probate cases should be extended to enable an incompetent individual to dissolve his or her marriage. The Appellate Court declines to extend the doctrine to dissolution proceedings. Husband also argues that KRS 403.150 contemplates a dissolution petition being filed by someone other than a member of a married couple, but the Court of Appeals holds the statute “unambiguously indicate[s] that only the actual parties to the marriage may commence the dissolution action.” Finally, husband makes a public policy argument. The Court of Appeals looks to the Kentucky Supreme Court Case of Johnson v. Johnson, 294 Ky. 77, 170 S.W.2d 889 (1943), holding Johnson is binding precedent preventing the court from allowing an incompetent person to bring an action for divorce even after considering the public policy implications. Ultimately, the Court of Appeals affirmed the trial court order dismissing the petition for dissolution of marriage.

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

Published Child Support Opinion from Ky Court of Appeals August 28, 2015

BOOTES V. BOOTES

Wife argued that the Trial Court erred by failing to include Husband’s income from a second business in its child support calculation. Husband ran a second business and gifted all his proceeds to his father. The Appellate Court held that the Trial Court erred by excluding the income from its child support calculation. Income from a small business, even if given away, is still income pursuant to KRS 403.212(2)(c). The Trial Court should have calculated the gross receipts of the business and subtracted the necessary expenses to determine the gross income to include in its child support calculation.

Wife also argued that the Trial Court erred when calculating the amount of income she was capable of earning. The Appellate Court affirmed the Trial Court, finding the Trial Court took appropriate factors into consideration when imputing income, including work history, prior income, and Wife’s new job. Next  Wife argued that the Trial Court erred by denying her maintenance and attorney fees. The Appellate Court again affirmed the Trial Court finding there was no abuse of discretion.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals Today: Choice of Law to Determine Whether State Disability Retirement Benefits are Marital Property

Kirilenko v. Kirilenko

In a KY divorce, the trial court erred in applying KY law to characterize CN state disability retirement benefits as nonmarital property. Instead, the Restatement (Second) of Conflict of Laws "most significant relationship"  test should be applied and CN law is more appropriate.

Another Family Law Published Opinion from Ky Supreme Court Today: Modifying Duration of a Child Support Order Issued by Another State and Award of Income Tax Dependency Exemption

Smyrichinsky v. Smyrichinsky

When Ky is exercising UIFSA jurisdiction, it lacks authority to alter the duration of child support directed by another state.

As to modification of the dependent income tax exemption, Ky has authority to modify who is entitled to the exemption  if it is part of a support order and not a property right. The court must articulate a sound reason why awarding the exemption to a noncustodial parent benefits the child, otherwise it should not be done.The court can only order a custodial party to sign a waiver releasing the exemption if there is a sound reason reliably related to the support of the child.

Ky Supreme Court Published Opinion Today: Social Security Retirement Dependent Benefits

C.D.G. v. N.J.S.

Where child receives social security retirement dependent  benefits, and child support obligation of retired child support obligor is not modified, child support payor is entitled to a credit against child support. And, where such benefits are paid retroactively so there is a fund available for recoupement, trial court did not abuse its discretion in ordering mother to reimburse father for the 22 months of dependent benefits paid in a lump sum.

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: Termination of Parental Rights and Stepfather Adoption Affirmed

R.P., JR. V. T. A.C., ET AL.

The Trial Court entered an Order terminating Biological Father’s parental rights and granting Stepfather’s Petition for adoption of the minor child. Father appealed arguing that the Trial Court did not make sufficient findings to terminate his parental rights. Termination must be supported by clear and convincing evidence. In this case, the Trial Court found that Biological Father had abandoned the child, had not been involved in the child’s life, had not made efforts to be involved in the child’s life, and had not paid child support for several years. The Court of Appeals affirmed the Trial Court’s decision.  

Digested by Elizabeth M. Howell.

 

Published Family Law Opinion from Ky Supreme Court - Whether a child testifies is in the discretion of the trial court and six hour time limit on trial was reasonable

ADDISON V. ADDISON

After significant ongoing litigation over custody, the Trial Court ordered that custody be transferred to Father and that Mother have supervised visitation. The Court of Appeals reversed because of the arbitrary time limitation at trial. Upon discretionary review the Ky Supreme Court reversed the Court of Appeals and reinstated the trial court’s judgment.

Time Limitations

As the Trial Court judge was familiar with the case, set the time limit sufficiently in advance of trial, and had significant experience with modification hearings, six hours was a reasonable time limitation within the discretion of the Judge.

Children’s Testimony

Mother requested the minor children testify as part of the modification hearing. The Trial Court declined to interview the children in chambers or allow them to testify. Mother argued on appeal the Trial Court did not have the authority to exclude the children’s testimony, when the children were called by a party to be a witness in a custody proceeding. The Court of Appeals, citing Coleman agreed. Coleman v. Coleman, 323 S.W.3d 770 (Ky. App. 2010). The Kentucky Supreme Court reversed the Court of Appeals and Coleman holding that the decision to interview a child or permit a child to testify in custody proceedings is within the discretion of the trial court. KRS 403.290(1) which grants a judge discretion in interviewing a child would be defeated if a party could obligate a child to testify. Additionally, the Trial court had the benefit of a GAL, two psychologists, and there is strong policy against placing a child between parents. The Trial Court’s decision was within its discretion.    

Jurisdiction

Although the Mother and children resided in Indiana, Kentucky was the undisputed home state when custody was initially determined. Father remained in Kentucky and exercised visitation in Kentucky. The Trial Court properly considered KRS 403.834 in determining Kentucky retained jurisdiction. Furthermore, Mother’s timing in requesting a change in jurisdiction was suspect.

Best Interest Standard, Attorney Fees, and Psychological Evaluation

The Supreme Court affirmed the Trial Court on all remaining issues finding no errors. The Trial Court properly applied the best interest standard by considering the KRS 402.340 and 403.270 factors, as well as an expert’s recommendation. The Trial Court declined to award mother attorney fees, as Mother’s actions necessitated the proceedings and there is nothing mandatory in an award of fees under KRS 403.220. Finally, the Trial Court properly denied Mother’s motion for Father to undergo a psychological evaluation as Father’s mental health was never in controversy.

Digested by Elizabeth M. Howell

 

Published Family Law Opinion from Ky Court of Appeals:Burden of proof that child support has been paid rests on obligors

SALLEE V. SALLEE

The Appellate Court vacated and remanded the Family Court’s denial of a Motion for Contempt for Father’s failure to pay child support. The Family Court incorrectly placed the burden of proof on the Mother/obligee to prove an arrearage was owed. Once the child support obligation is established, the child support obligor, in this case Father, carries the burden of proof. The Family Court also failed to make the findings of fact required by CR 52.01.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals: Written Findings Required in Domestic Violence Proceedings

BOONE V. BOONE

The mandate for written findings of fact and conclusions of law applies to DVO cases. CR 52.01 and KRS Chapter 403, along with the holding in Keifer, require findings in family law cases be reduced to writing. DVOs affect child custody, therefore they fall within the purview of CR 52.01. In this case, although adequate findings were made orally from the bench, the Appellate Court remands the case to the Trial Court for written findings of fact and conclusions of law.

Keifer v. Keifer, 354 S.W.3d 123, 126 (KY. 2011).

Digested by Elizabeth M. Howell

 

Ky. S. Ct Published Opinion - writ of prohibition denied to prevent enforcement of order unsealing divorce records

DANIEL E. BAILEY, JR. (M.D.) V. HON. ALLAN RAY BERTRAM, JUDGE, MARION CIRCUIT COURT, DIVISION II, ET AL.

Parties filing a medical negligence claim against a physician moved to intervene in the doctor’s divorce case solely to unseal portions of the sealed divorce records. The intervening parties claimed the divorce may have impacted the doctor’s treatment of the patients in the malpractice action. The Trial Court granted the motion to intervene and ordered the divorce records to be unsealed. The doctor filed a writ of prohibition against the enforcement of the Trial Court’s Order. The Court of Appeals concluded the writ of prohibition was appropriate in that there was no adequate remedy by appeal, but denied the writ because the trial court did not act erroneously by unsealing the divorce records, as judicial records are presumptively available to the public.

The Supreme Court first addresses the permissive intervention of the doctor’s patients holding they had no right to intervene in the doctor’s divorce action. The intervening parties had no interest, claim, or defense in common with the divorce action. They were simply attempting to intervene to obtain discovery to benefit their malpractice case. While the press may have a right to intervene in a sealed civil case under the First Amendment, the media has special standing because of freedom of the press. In this case, the intervening parties have the right to engage in discovery under the Civil Rules, but no right to intervene in an unrelated case as a method of discovery.

The Supreme Court turns to address whether the writ of prohibition was an appropriate remedy to provide the doctor relief from the Trial Court’s order. The Supreme Court holds there is an adequate remedy by appeal, so a writ of prohibition is not available as a remedy. The Trial Court order was a final and appeal order not to take effect for 21 days after its entry. Further, the order provided it would be stayed if appealed and CR 76.33 allows a party to request a stay of a Trial Court order.

Thus, the Supreme Court affirms the Appellate Court’s denial of the writ of prohibition, but because there was an adequate remedy available by appeal.

Digested by Elizabeth M. Howell