Divorce Law Journal

Ky Published Opinion: Reasonable Parenting Time

HUDSON V.COLE

Father, a Michigan resident, and Mother, a Kentucky resident, live five hours apart, but were granted joint custody. The Trial Court ordered Father to have parenting time one weekend a month in Kentucky, in line with the “Parenting Time Assessment” report submitted by an expert appointed to conduct a custody assessment. The Trial Court found expert’s parenting time schedule to be in the child’s best interest and adopted it as a Court Order. Father argued that under KRS 403.320  he should have reasonable visitation, unless it the court found his visitation would seriously endanger the child. The Appellate Court rejected his argument, as KRS 403.320 applies to visitation modifications or denials, and this case was not a modification of a pre-existing order. The Appellate Court affirms the Trial Court and  holds “reasonable visitation is decided based upon the circumstances of each parent and child, with the best interests of the child in mind.”

Digested by Elizabeth M. Howell

 

Ky Published Opinion - Standing to Intervene in Adoption

W.R.L., ET AL. V. A.H.

A child born out of wedlock lived with A.H. as a family member for several years. A.H. participated in co-parenting the child , until A.H.’s relationship with the child’s mother ended. A.H. continued to have visitation with the child until the child’s mother got remarried and prevented A.H. from seeing the child. Finally, the child’s step-father filed a petition to adopt the child.

A.H. moved to intervene in the step-father’s adoption proceeding. The Appellate Court held that A.H. did not have standing to intervene in the custody case. The right to seek custody in another proceeding does not create a right to intervene. Additionally, A.H. did not have physical or legal custody of the child and was not a person acting as a parent in satisfaction of KRS 403.800(13)(a), nor was A.H. a person whose consent to the adoption was necessary. A.H. was not authorized to intervene in the adoption proceeding.

Judge Maze wrote separately to emphasize that although A.H. did not have a legal right to intervention, the interests of the child are implicated. The child may be best served by being allowed to continue a relationship with A.H. who participated as a co-parent for the formative years of the child’s life.

Digested by Elizabeth Howell

Ky Published Opinion - Agreement to Pay for Parochial School

CAGATA V. CAGATA

Husband and wife entered into an agreement at the time of dissolution, as part of a Marital Settlement Agreement, providing Husband would pay the costs of the children’s tuition, books, fees and uniforms for parochial high school, unless extraordinary financial circumstances prevented him from paying for it. The Trial Court found the agreement was unambiguous, there were no extraordinary financial circumstances, and ordered Husband to pay the cost of parochial high school. The Appellate Court affirmed the Trial Court, holding the agreement was an enforceable contract and Husband failed to show an extraordinary financial circumstances.

Digested by Elizabeth Howell

 

Ky Published Opinion - Emergency Custody, DeFacto Custodian, and Grandparent Visitation

ROBISON V. THEELE, ET AL.

Mother lived with her parents (hereinafter “grandparents”), and passed away after treatment for cancer, which mother underwent during dissolution proceedings. Father exercised visitation regularly during the proceedings and mother’s cancer treatment. At the time of the Mother’s death, the Trial Court awarded Grandparents a “status quo ex parte” order to keep Father’s visitation in place. Subsequently, the Trial Court awarded de facto custodian status to Grandparents, gave Grandparents sole custody, and granted Father supervised visitation with his children. The Trial Court did not make findings supporting its Judgement. The Appellate Court vacated and remanded the Trial Court’s Judgement.

First, the Appellate Court holds there is no authority for a “status quo ex parte” order, The Trial Court should have followed the KRS 620.060(3) procedure which provides for an emergency custody order. Second, they hold there were no findings to support the Trial Court’s award of de facto custodianship to Grandparents and reiterate the superior rights of natural parents. The Appellate Court also holds that the dissolution proceedings between Father and Mother tolled the time period required for the grandparents to establish their de facto custodian claim, as custody issues were contested in the divorce proceeding. Finally, the Appellate Court holds the Trial Court did not make the requite findings to award grandparent visitation which must overcome the presumption that a parent acts in the child’s best interest when denying grandparent visitation.

Digested by Elizabeth Howell

 

Ky Published Opinion - Child Custody and Servicemembers Civil Relief Act

WOOD V. WOESTE

Father and Mother had  joint custody of child, who was living in Kentucky with Father during the school year. Mother resided in Montana. Father was given notice he was being returned to active service in the National Guard Air Force in September 2014. In December, Mother filed a motion for temporary primary residential custody citing Father’s deployment as a substantial change in circumstances. Father filed a motion to stay the proceedings under the Servicemembers Civil Relief Act (hereinafter “SCRA”). The Trial Court denied Father’s SCRA motion, and held a hearing in January 2015. The Trial Court ordered the child reside with Mother as the temporary residential custodian, until Father returned from deployment. The Appellate Court notes that in making this decision the Trial Court failed to utilize the best interest of the child standard, as required. Active duty deployment is the base for a substantial change in circumstance, but does not eliminate the need to use the best interest standard.

The Appellate Court grants a writ of prohibition holding Father made a showing the Trial Court acted erroneously, there is no adequate remedy by appeal, and great injustice and irreparable injury have resulted. The Appellate Court held that while the SCRA’s predecessor allowed court’s to use discretion in granting a stay, the ACRA language mandates a stay. The father complied with the requirements of the SCRA, therefore the Trial Court erred in failing to grant a stay. As the child was relocated during the school year without consideration of his best interest, the Appellate Court also held that a later appeal would not be adequate and the injury was irreparable. Thus, the Appellate Court grants Father a writ of prohibition ordering the Trial Court to return the child to Kentucky, from Mother’s residence in Montana  as soon as  practical.

Judge Maze dissents comparing the SCRA to its predecessor which allowed Trial Court’s to use discretion in the decision to grant a stay. Judge Maze also points out that now that the child has already been moved to Montana moving him back to Kentucky simply aggravates the injury that has already occurred.

Digested by Elizabeth Howell

Published Child Support Opinion From Ky Court of Appeals Today: Testimony from Litigant Outside the Country and Application of Child Support Guidelines

MOSKOVITZ V. MOSKOVITZ

Appellant’s motion to modify child support was denied by the Circuit Court because Appellant could not attend a hearing in person. Appellant was a resident of Venezuela and unable to legally enter the United States. The Appellate Court reversed and remanded the Circuit Court’s decision, holding the Circuit Court abused its discretion, as the child support modification statute does not require a party’s physical presence at a hearing. The Circuit Court has an affirmative duty to apply the child support guidelines in any action to modify a child support order.

Published Child Support Termination Opinion from Ky Court of Appeals Today - Home-schooled high school senior

MIX V. PETTY

Appellant appeals the decision of the family court to terminate child support on May 30, 2014 for a home-schooled child remaining in high school after his 18^th birthday. Appellant argued child support should either terminate on June 30, 2014, or extend until the child completed his senior year in November 2014. The Appellate Court affirmed in part, upholding the family court’s decision not to extend child support through November 2014, given the trial court’s discretion and the circumstances of the case. The Appellate Court reversed in part, holding the plain language of KRS 158.050 sets June 30 as the end of the school year and the court erred as a matter of law in setting May 30 as the end of the school year.

Digested by Elizabeth M. Howell

Published Domestic Violence Opinion from Ky Court of Appeals March 13, 2015

HOLT V. HOLT

The appellant appealed a Bullitt County DVO, arguing the court lacked jurisdiction to enter a DVO. The petition for a DVO was originally filed in Nelson County. It was transferred to Bullitt County after the Nelson District Court determined Bullitt County would be more appropriate, as the court was already familiar with the parties. The Appellant Court first addresses subject matter jurisdiction holding that the Kentucky Family Courts all have jurisdiction to preside of matters involving domestic violence. The Court then turns to venue and finds that both the county where the victim resides, in this case Nelson, and the county where there are on-going dissolution proceedings, in this case Bullitt, are proper venues. Thus, the Appellate Court found no error with either jurisdiction or venue.

Additionally, appellant argued there was insufficient evidence to enter a DVO and no meaningful hearing. The Appellate Court affirms the entry of the DVO holding that testimony Appellant was harassing and stalking Appellee, unlawfully entered his home, had angry outbursts, frequent drive-bys, prior acts of violence, and harassing communications was sufficient evidence to support the entry of a DVO. The Court further held there was a meaningful hearing, as each party was represented by counsel, gave testimony, and had an opportunity for cross-examination.

Judge Thompson wrote separately noting the role of clerk is ministerial, and a clerk should not make a determination about the legal sufficiency or forum when a complaint is properly filed. The clerk in this case incorrectly prevented Appellee from filing in Bullitt County and instructed him to file in Nelson County. 

Digested by Elizabeth M. Howell

 

Published Family Law Opinion from Ky Court of Appeals Today -Directed Verdict Dismissing Termination of Parental Rights Petition Against Imprisoned Father Affirmed

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

The Appellate Court affirms the Trial Court’s grant of a directed verdict and dismissing the Cabinet for Health and Family Services’ (CHFS) petition to terminate the parental rights of father. Although the father is in Federal prison on drug charges until 2019, his prior involvement with his child was positive and beneficial. Additionally, father maintains regular prison visits with the child which are also beneficial. The father’s incarceration and length of incarceration alone  are not enough to support finding of abandonment or neglect necessary to sustain the CHFS Petition in light of the strong “fundamental liberty interest” a natural parent has in “the care, custody, and management” of his or her child.

Digested by Elizabeth M. Howell.

Published Family Law Opinion from Ky Court of Appeals Today, Equitable Estoppel Precludes Vacating Paternity Judgment

K.W. V. J.S.

In Family Court, father made a CR 60.02 motion more than three years after entry of a paternity judgment, arguing the biological mother made material misrepresentations to him to induce him to agree to a paternity judgment. The Family Court denied the CR 60.02 motion and discontinued child support.

The Appellate Court affirmed the Family Court’s denial of father’s CR 60.02 motion. Father was equitably estopped from setting aside the paternity judgment, as the he allowed the children (twins) to call him “daddy,” maintained a relationship with the children, waited over three years to make a CR 60.02 motion, and evidence at trial demonstrated he knew he was not the biological father at the time he agreed to paternity, but did so for tax benefits. The Appellate Court reversed the Family Court discontinuation of child support, holding as the legal father he is required by statute to pay support. The fact that he is not the biological father of the children is not cause for deviation from the child support guidelines.  

Digested by Elizabeth M. Howell

Court Appoionted Psychologist Enjoys Quasi-Immunity, Ky Court of Appeals

J.S V. BERLA

While not a family court case, as an action against a court appointed psychologist, this case is important to family law practitioners.

A father filed an action against a court appointed psychologist making a custody evaluation. The father alleged slander and libel arguing the psychologist did not act in good faith in making a  verbal report to the CFHFS and in her written Custodial Evaluation Report. The father also argued the psychologist  breached the good faith and fair dealing contractual requirement of the Uniform Commercial Code (“UCC”). The trial court granted summary judgment in favor of the psychologist.

The Appellate Court affirms the Trial Court holding there was not sufficient evidence to prove the psychologist was not acting in good faith or was acting with knowledge of falsity. The Appellate Court holds a court-appointed psychologist is given quasi-judicial immunity in order to complete the job effectively and immunity applied in the case at hand. The Appellate Court also points out that a court-appointed task is not one that falls under the authority of the UCC, hence summary judgment was appropriate.

Digested by Elizabeth M. Howell

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.

Award of cost of living adjustments to civil pension affirmed by Ky Court of Appeals in published opinion January 16, 2015

BROWN V. BROWN

In divorce proceedings, husband had a civil pension. The marital portion was divided equally between the parties using the deferred distribution method. Husband argued that the award should not include the cost-of-living adjustments (COLAs) he received after the divorce. The Circuit Court concluded wife was entitled to the COLAs corresponding to her share of the pension. The Appellate Court affirmed the Circuit Court’s conclusion holding the  wife's portion of the marital retirement should include the COLAs, as they are not earnings attributable to the husband's post-decree efforts.

 

Another Ky custody case reversed where GAL filed a report... Published Opinion from Ky Court of Appeals January 16, 2015

HOSKINS V. HOSKINS

The Circuit Court used the report and investigation of a Guardian Ad Litem (GAL) to make findings a custody modification was appropriate. The Appellate Court applied Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) and held the Circuit Court “erroneously appointed the GAL to represent the child and to conduct an investigation and file a report…” The appellate court emphasized the Supreme Court’s reasoning in Morgan, particularly the ethical and constitutional problems with conflating a Friend of the Court with a GAL. The Appellate Court reversed and remanded the Circuit Court Order modifying parenting custody, as the error was not harmless because the only facts cited in the order were from the GAL’s report.

Ky Court of Appeals Family Law Published Opinion 12/24/14; Termination of Parental Rights; Indian Child Welfare Act; Standard of Proof

E.S.L.C. v. Cabinet for Health and Family Services, et al

The mother appealed from a Family Court order terminating her parental rights. She argued that she was deprived of due process because she was not notified prior to the termination hearing that the family court would apply the KRS 625.090 clear and convincing evidence standard of proof, instead of the reasonable doubt standard required by the Indian Child Welfare Act. The child had Indian heritage, specifically the Lower Brule Sioux Tribe.

The Appellate Court affirmed the Family Court’s judgment terminating the parental rights of the mother. The Appellate Court held that the Indian Child Welfare Act did not apply due to the Existing Indian Family Doctrine. The mother and father abandoned the child shortly after birth and the Lower Brule Sioux Tribe communicated it could not assist the child and would not intervene, so the child was never raised in an Indian home or environment. Thus, the Indian Child Welfare Act did not apply. Additionally, the Appellate Court held the mother was not prejudiced because the Family Court applied a higher standard of proof and not a lower standard of proof. The mother did not challenge the Family Court’s findings, and the Appellate Court found no error with the Order terminating the mother’s parental rights.

 

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.

 

Ky Published Family Law Opinion from Court of Appeals Today

Lambe v. Weber

The Appellate Court first addresses maintenance, holding that income should not be imputed to a spouse when her underemployment is not voluntary. In this case, the child’s medical needs prevented the mother from working.

The Appellate Court did find error with the Family Court’s conflation of child support and maintenance. The Appellate Court held maintenance is for the reasonable needs of a spouse. Expenses for children do not come within a spouse’s reasonable needs, as the children’s expenses are already included in the court’s child support calculation. Including children’s expenses in maintenance is inappropriate as it would ultimately require the obligor to pay all of the children’s expenses.

The Appellate Court also held that the nine year duration of maintenance was not adequately supported by the lower court’s findings when the marriage was 20 years long, the wife was only 48 years old, the wife had a bachelor’s degree, and expert witnesses found the wife to be employable. The Appellate Court remanded the maintenance decision for recalculating the amount and for additional findings supporting the  duration.

The Appellate Court then dealt with a slew of other issues, upholding all lower court decisions. They found no error with the  court’s consideration of gross vs. net income in setting maintenance, the consideration of gross income in setting child support, and the court’s use of a stock valuation from an expert witness. They held that the lower court had broad authority in assigning attorney fees and did not make an error assigning a portion of wife’s attorney’s fees to husband where the husband was high earning, the wife was unable to seek full time employment, and the court awarded only half the total amount of wife’s attorney’s fees.

The Appellate Court also upheld the lower court’s consideration of future and past earnings in calculating income; and upheld the decision to assign all the residential expenses to the wife, when the obligations were considered in calculating her expenses to determine maintenance. Finally, the Appellate Court affirmed the lower court’s refusal to modify maintenance, as the husband showed no change of circumstances to justify a modification.

 

 

 

 

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.

 

 

Published Opinion from Ky Court of Appeals Today: Order requiring mother to have a passport issued for child affirmed

Benton v. Sottingeanu

An order requiring a parent to obtain a passpot for a child does not require specific findings of fact where no modification of parenting time is made. The court must consider the child's best interests. Federal law permits a court to order a passport where a joint custodian refuses consent. Court's order requiring mother to insure issuance of passport was affirmed.

The court of appeals noted numerous safeguards were imposed by the trial court  to monitor international travel, including that mother would retain the passport, a hearing regarding travel would be held once a prliminary interary was proposed, father would have to post a $250,000 cash bond if travel is permited by court order, mother would have conatct with the child while away, and after the child is returned the passport will be delivered back to mother.  

Fourth Published Family Law Opinion from Ky Court of Appeals Today

Waddle v. Waddle

Award of grandparent visitation reversed because court failed to apply the modified best interest standard to consider the objection of mother who is presumed fit. Court must presume a fit parent is making decisions in the best interest of the child. Case was remanded for a new evidentiary hearing at which grandparents must provide clear and convincing evidence that visitation is in the child’s best interest and trial court must use Walker factors and provide written findings of fact.

Third Family Law Published Opinion from Ky Court of Appeals Today

Luu v. Murphy, et al

Child custody award to de facto custodians reversed. Substantial evidence of record does not support the conclusion that appellees were child's primary caregivers and primary financial supporters. Trial court appears to have based its ruling on testimony of the appellees that they "believed" they were no longer just babysitting the child but that they were keeping her on a permanent basis. During three of the months appellees had the child it was clear that this was meant to be a temporary babysitting arrangement. Mother's temporary absences from West Virginia did not cout against the six-month period required to establish the home state of the child. Even if Kentucky had jurisdiction, under facts of this case appellees could not be declared de facto custodians because they had not been child's primary caregiver and financial supporters for six month before mother sought to regain custody.

The West Virginia family court has jurisdiciton.

Second Family Law Published Opinion from Ky Court of Appeals Today

Shelton v. Shelton

Trial court denied father's motion to reduce child support. Father had burden of proof to show substantial and continuing change of circumstances. Even though at time of agreement youngest child was age two and no income was imputed to mother and at time of hearing child was age four and mother was still not working, trial court was unable to find father's income from self-emloyment due to lack of documentation. The court's conclusion that there was insufficient evidence to find a change in circumstances that would justify modification was affirmed.

Published family law opinion from Ky Court of Appeals today - change of primary residence

A.G. v. T.B.

A custody determination is separate from parenting time. A modification of parenting time, even one that changes the child's primary residence, does not alter joint custody. Two affidavits are not required for a motion to change primary residence. Trial court did not abuse its discretion in prohibiting mother from relocating the children and granting father primary residence of the children.

Ky Court of Appeals Published Opinion - Denial of Trial Continuance Reversed

BOUVETTE V. BOUVETTE

The Appellate Court held the Trial Court abused its discretion by denying Appellant’s motion for a continuance of a four hour trial on financial matters. The Court used the Snodgrass factors to determine the denial was an abuse of discretion. The inconvenience a continuance would case the opposing party was minimal, and the inconvenience to the Court was unknown. The delays were not planned or purposeful. Appellant’s first request for a continuance was because she was ill and her attorneys withdrew. Her second request for a continuance was based on severe depression and supported by a letter from her Psychiatrist. Furthermore, Appellant attempted to obtain counsel, but did not have money for a retainer readily available. She filed motions in an attempt to obtain the funds necessary to retain an attorney, but there was a delay in obtaining the funds. The Court was aware of her efforts to obtain counsel, but nonetheless proceeded with the trial on financial matters. The case was complex including issues of dissipation of the marital assets and nonmarital tracing. Appellant was unable to present evidence and participate in the litigation in a meaningful way. She was identifiably prejudiced by the Court’s denial of her motion. Therefore, her request for a continuance should have been granted.

Ky Role of Guardian ad Litem and Friend of the Court in Custody Litigation - Case Digest and Link

Morgan V. Getter and A.G., A Child

Issue

 

In a custody matter, can a Guardian Ad Litem (“GAL”) serve as both an attorney for the minor child involved in the custody dispute, as well as an investigator for the Family Court?

 

Facts

 

In 2011, Getter petitioned to modify custody for the parties’ only remaining minor child. The Family Court subsequently appointed a GAL for the minor child. The GAL filed a report based on interviews and a visit to the residence of the custodial parent, Morgan. In the report, the GAL ultimately recommended the minor child be allowed to relocate to Florida and live with Getter.

 

At the hearing, Morgan requested to cross-examine the GAL about the report favoring Getter. The Family Court denied this request and the hearing progressed. Morgan moved to strike the GAL’s report, and the Court deferred ruling on the motion. Ultimately, the Court gave Getter joint custody with primary physical custody. The minor child relocated to Florida with Getter. Morgan appealed the decision, but during the appellate process the minor child turned eighteen.   

 

Analysis

 

Mootness and Public Policy Exception

 

The Court first looks to the issue of mootness, as the minor child turned eighteen making moot any decision on the child’s custody. The Court formed a public interest exception to the mootness rule, differentiating it from the capable of repetition rule used in prior cases.

 

The Court sets out a three-prong test for the public interest exception to mootness. “(1) The question presented must be of a public nature; (2) there must be a need for an authoritative determination from the Court for the future guidance of public officers; and (3) there must be a likelihood of future recurrence of the question.”

 

The Court then holds that the elements of the public interest exception are present in the current case, as (1) the proper role of a GAL is a “substantial question of a public nature;” (2) Family Courts addressing custody would benefit from future guidance; and (3) issues regarding the proper role of GALs are certain to occur in many other cases and will likely evade review, especially when the dispute involves older children.

 

Proper Role of GALs in Custody Disputes

 

Due process, as set out in Mathews v. Eldridge, requires a “(1) private interest affected by official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the Government’s interest additional or substitute procedure would entail.”

 

In this case, (1) there is a clear liberty interest in the care and custody of a minor child; (2) the Court’s actions significantly altered Morgan’s ability to care for and have custody of the minor child, and (3) the State has no interest in disallowing the testimony of the GAL. Based on this analysis, the Court concludes that Morgan’s due process rights include the right to cross-examine the GAL in the custody proceeding.

 

The Family Court erred by allowing the report and disallowing a cross-examination of the GAL authoring the report, violating Morgan’s due process rights. The Court held that due process is compromised when attorneys serve as both investigators for the court and attorneys for minors involved in custody disputes.  Because of this inherent conflict, the court holds that a GAL cannot serve as both an investigator for the Court and an attorney for the minor child.

 

Instead of using a GAL as an investigator, a Family Court may appoint a de facto Friend of the Court (“FOC”) to serve as an investigator under KRS 403.300(1) and FRCPP 6(2)(f). The investigator can file a report, but must be available for cross-examination.  Alternately, a Family Court may appoint a GAL to represent the child under FRCPP 6(2)(e). As a representative of the child, the attorney cannot put her own credibility at issues.

 

The Court also makes a distinction between an attorney representing the child’s best interest from an attorney representing the child’s express interest. The Court holds a GAL should represent the child’s best interest as children have diminished capacity. An attorney is authorized under SCR 3.130-1.14(b) to reasonably protect a client with diminished capacity. Thus, a GAL may balance the wishes of a child with the child’s best interest.  

 

Conclusion

 

Family Courts will need to alter current practices, appointing a de facto FOC to investigate on behalf of the Court and/or appointing a GAL to represent the child. The appointment of both a de facto FOC and GAL are available to the Court, but are not requirements for proceeding in a custody matter. 

 Digested by Elizabeth M. Howell

Groundbreaking Ky Guardian ad Litem Opinion from Ky Supreme Court Yesterday

Morgan v. Getter, et al. Digest to follow.

Publshed Family Law Opinion from Ky Supreme Court Today

Rumpel v. Rumpel

The Supreme Court reaffirms the American Rule against shifting fees, recognizing CR 37.03 and KRS 403.220 as exceptions to the rule. In this case, $50,000 of attorney fees were awarded to the Wife under CR 37.03 and KRS 403.220. The Supreme Court held that the Trial Court misapplied CR 37.03 by imposing discovery sanctions on Husband for denial of a request for admission. The Trial Court should have considered Husband’s grounds for denial. As in this case, when a party reasonably believes he might prevail on a matter, or has a legitimate reason for denial of a request for admission, the denial is justified and sanctions are improper. CR 37.03 is to be narrowly construed. Husband should not have been sanctioned under CR 37.03.

Unlike 37.03 which provides for narrow sanctions, KRS 403.220 provides for attorney fees when there is financial disparity between parties to a divorce. The Trial Court has broad discretion in awarding attorney fees under KRS 403.220. The rule is not punitive, but Kentucky case law holds Trial Courts can appropriately consider the litigation conduct of the parties. Allowing Trial Courts this discretion prevents an “unreasonable or an unfair burden on the party with fewer financial resources.” In this case, the Supreme Court notes facts which may support an award of attorney fees under KRS 403.200. The Supreme Court remands the matter to the Trial Court to determine the amount of Wife’s attorney fees Husband should pay under KRS 403.200.

Finally, The Supreme Court looks to Husband’s argument that wife improperly applied CR 59.05. The Wife challenged the business-valuation amount after trial and entry of the initial judgment. CR 59.05 is not available to Wife because she could have raised the business-valuation issues during the trial. Wife’s use of CR 59.05 and the Trial Court’s subsequent modification of the property settlement award are improper. The Supreme Court agrees with the Husband that Wife should have raised any business-valuation issues pre-judgment, as she has the information available to her at that time.

Published family law published opinion from Ky Court of Appeals today. Tax dependency exemption agreement is modifiable.

Smith v. Lurding

The appellant argued that the tax exemption for a child was non-modifiable because it was a bargained-for property right. The court looked to the language of the Agreement and held that the tax exemption was indeed modifiable because of the 4 corners doctrine. The agreement about the tax exemption was within the Agreement’s paragraph on child support. The Agreement itself expressly allowed modification for the child support provision. Additionally, the court indicated that allocation of a tax exemption for a child may be modifiable in any circumstance under KRS 403.180(6) which prevents parties from limiting or precluding the modification of issues concerning child support, visitation, and custody.

Ky Court of Appeals, July 18, 2014, Published Opinion Reversing Order Reinitiating Contact With Mother

OSTER VS. OSTER

The Appellate Court reversed and remanded a Trial Court Order for reinitiation of contact between a mother and her two children. The Appellate Court first held that the Trial Court’s  original order conditioning reinitiation on compliance with all therapeutic recommendations was never modified, set aside, or reversed. Therefore, the mother was bound by it. The mother’s noncompliance with the original order was enough to bar reinitiation of contact.

The court reiterated the principle that when there is a previous denial of visitation, there is no presumption visitation is in the child’s best interest. The mother’s DVO prohibiting contact which her children destroyed the presumption visitation was in her children’s best interest. It is the child’s best interest which controls the decision to resume visitation. In this case, the court held reinitiation was not the children’s best interest because none of the experts believed visitation should resume, the mother had ongoing mental health problems, and the conditions of the previous order had not been met. The desire of the children to see their mother was not sufficient evidence visitation was in their best interest.

Published Ky Child Support Business Income Opinion from Court of Appeals June 20, 2014

Hawkins v. Hawkins

The appellate court affirmed the family court’s decision to exclude income from W’s limited partnership in child support calculations. The court held that income generated from an ownership interest in a limited partnership may be considered income in calculating child support. In this case, W had no control over the distribution and there was no evidence in the record showing  a cash distribution (K1 line 19), so the court found the family court properly determined the income from the partnership, while taxable income, was not disposable income.

The appellate court’s dissenting opinion found the case should be reversed and remanded to make finding as to the income W received as a distribution. The dissent indicates the family court’s decision could have been an abuse of discretion if it did not include the partnership income because it found that partnership distributions should not be considered income.

Published Family Law Opinion from Ky Court of Appeals May 30: Divorce Settlement Incorporated in Decree Which Reserved Child Support Does Not Extinguish Pendente Lite Arrearage

 Wolfe v. Wolfe

Parties entered into a mediation agreement and  advised the trial court that all issues had been settled with the exception of child support. The parties agreed they would supply income information for the child support worksheet. The mediation agreement was silent as to the child support arrearage. The parties dissolution of marriage was entered incorporating the mediation terms. The decree was also silent as to the child support arrearage. After the final degree was entered, the arrearage was brought to the court’s attention in a Motion for Reconsideration. The trial court denied the Motion holding the mediation settled all matters. The Appellate Court reversed and remanded because the mediation did not settle on the child support issue, and any support is for the benefit of the child, and it is fixed once it accrues.

 

Published Family Law Opinion from Ky Court of Appeals May 23, 2014

Smith v. Smith, Nonmarital property might still be subject to division between parties where there is a partnership, joint venture, or profit sharing agreement. In this case, the parties cohabitated prior to marriage. While the property acquired during cohabitation was nonmarital, the nonmarital property was still a jointly owned asset by agreement of the parties subsequent to a joint venture. Thus, the property lost its nonmarital characterization. The court also concluded the appellant did not properly trace the additional properties she was claiming were nonmarital, therefore there was no clear error in the finding that they were marital property. In addition, the court found no clear errors in the Trial Court’s child support, property division, and debt assignment decisions.

On a procedural note, this case points out that certification of the record must include video recordings. The court cannot look to video recordings for evidence if they are not part of the record on appeal.

One Published Familly Law Opinion from Ky Court of Appeals May 16, 2014:Hempel v. Hempel. When child support is reversed on appeal, overpaid child support cannot be recouped unless there is an accumulation of benefits not consumed for support. If the ove

Hempel v. Hempel.  When child support is reversed on appeal, overpaid child support cannot be recouped unless there is an accumulation of benefits not consumed for support. If the overpayments have already been expended to benefit the child, no recoupment is allowed, even when a fund equivalent to child support is available. A college fund would not be equivalent to child support even if equivalency were allowed.

One Published Family Law Opinion from Ky Court of Appeals Today

B.L. v. J.S., et al  Lack of counsel in underlying neglect case is not considered a  lack of counsel at all critical states of adoption where the biological parent  was not the target of the neglect case and where biological father did not object to adoptive parents being granted full custody of child. Biological father is not a parent exercising custodial control or supervision where he was incarcerated and uninvolved with child for most of child’s life. Court was not required in adoption proceeding to consider less drastic means than adoption. Finally, relatives related only by marriage are nonetheless relatives where statute does not require they be blood relatives and thus there was no error in permitting great-aunt and great-uncle related by marriage to adopt without placement for adoption by the Cabinet.

New UCCJEA Published Opinion from Ky Court of Appeals April 25, 2014

Curry v. Curry

Residency in KY is not a requirement for continuing jurisdiction. The central inquiry is whether child maintained a substantial connection with KY. UCCJEA is concerned with child's connection to the state, not a particular county.

No Child Support Credit for Child's Social Security Retirement Dependent Benefit. One Published Family Law Opinion from Ky Court of Appeals Today

N.J.S. v. C.D.G.  Because the Ky child support statute does not authorize a credit against child support for child’s social security retirement dependent benefit, it was error allow such a credit and to order that payor be reimbursed for child support overpayment from the child’s retroactive lump-sum benefit. Concurring opinion underscores the need for legislative fix as is currently provided for with respect to disability dependent benefits.

One Published Family Law Opinion from Ky Court of Appeals Today

B.D. v. Cabinet for Health and Family Services, et al.  Where children are removed from parent under a temporary removal order and then parent files a petition in family court for “immediate entitlement” under KRS 620.110, family court erred in dismissing the case without a hearing. The family court had held  that statute is intended for appellate review and because the family court made the removal order, an appeal should be made to the court of appeals. The Court of Appeals held that the  removal order was a temporary order and thus is interlocutory and not ripe for appeal. Moreover KRS 620.110 does not refer to an appeal. It is an original action which should be heard in family court.

Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment. Published Opinions from Ky Court of Appeals March 7, 2014.

Crews v. Shofner  Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment.

 

Three Published Family Law Opinions from Ky Supreme Court Yesterday

Bell v. Bell  Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result.

 

Cabinet for Health and Family Services v. K.H., Sr.   Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore reversed and the family court’s order terminating parental rights was affirmed.

 

Coffey, et al v. Wethington  A person acting as a parent has standing to bring a custody action. If the person acting as a parent has physical custody of the child at the time the action is commenced, standing exists and it need not have been for six consecutive months. The six month requirement applies only to persons who had physical custody in the past but who do not have physical custody at the commencement of the action.

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.

Published Family Law Opinion from Ky Court of Appeals Today: Split custody modification jurisdiction under UCCJEA

Ellis v. Ellis

 Where Ky did not issue original custody decree, neither child currently resides in issuing state and that state declines to exercise exclusive continuing jurisdiction, and one child lives with father in Ky and other child resides with mother in AZ, Ky is clearly the home state of one child and AZ is clearly the home state of the other child. The only issue is whether Ky should decline to exercise jurisdiction to modify because AZ is a more appropriate forum. While splitting jurisdictions should generally be avoided, in this case trial court was reversed because AZ has no connection to the son, no relevant information about the child is located in Az, and none of the factors of KRS 403.834(2) would favor AZ’s exercise of jurisdiciton over KY.

 

Three Published Family Law Opinions from Ky Court of Appeals Today

Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs.

 

D.L.B. v. Cabinet for Health and Family Services, et al  Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion.

 

Murry v. Murry  Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and presents more problems than it resolves falls short of the requirement that necessary facts be found specifically so case was remanded to trial court to make further factual findings.

Published Family Law Opinions from Ky Court of Appeals today

 

 

Fortwengler v. Fortwengler  

A prior appeal affirmed the 50/50 division of debt to husband’s father. Husband sought to garnish wife’s maintenance to satisfy her half of the debt. Trial court’s denial of this request and trial court’s subsequent denial of husband’s father’s motion to intervene for a judgment and payment schedule was affirmed on appeal. Proper procedure is for husband’s father to attempt to collect the debt in a separate action against wife.

C.J.M. v. Cabinet for Health and Family Services 

Termination of parental rights affirmed.

Family Law from Ky Supreme Court today: Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may ha

Masters v. Masters 

Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may have lacked requisite number of affidavits, because party did not raise the issue before trial court she cannot raise deficiency on appeal.

Published Family Law Opinion from Ky Court of Appeals 11/27/13: Fairhurst v. Moon, Even though parent had never completely denied grandparent visitation, court may not presume grandparent visitation is in children’s best interest. Rather, court must pre

Fairhurst et al v. Moon 

Even though parent had never completely denied grandparent visitation, court may not presume grandparent visitation is in children’s best interest. Rather, court must presume parents have the right to limit visitation with grandparents and grandparent retains burden of proving that court-ordered visitation is in children’s best interests.

 

Family Law from Ky Court of Appeals Today:Where MSA awarded each spouse his/her own IRAs and each waived any claim to the IRA of the other, but husband failed to change his beneficiary designation to someone other than former spouse, Ky Court of Appeals a

Sadler v. Buskirk

Where MSA awarded each spouse his/her own IRAs and each waived any claim to the IRA of the other, but husband failed to change his beneficiary designation to someone other than former spouse, Ky Court of Appeals affirmed trial court’s denial of new wife’s request to declare that former spouse had no rights as beneficiary.

One Published Family Law Opinion from Ky Court of Appeals Today

Smyrichinsky v. Smyrichinsky  http://opinions.kycourts.net/coa/2013-CA-000181.pdf Where both parties and the child have moved from the state issuing original child support order, trial court properly applied Kentucky law. The Court noted that the mother did not object to the application of Ky law until the third time the Ky court modified support. Trial court allocation of income tax dependency exemptions to father for three specific years affirmed.  

One published family law opinion from Ky Court of Appeals Today - Attorney Fees

Nesselhauf v. Haden, et al, Where appellants’ claim for attorney fees was in ad damnum clause and no statement of why he or she is legally entitled to the request was made, no separate claim for relief  was before the court.  Once court entered custody directed verdict and more than 10 days passed with no motion to alter or amend, the court lost jurisdiction. Award of attorney fees made months following the final judgment was reversed.

 

Ensor v. Ensor, Ky Court of Appeals

There were only a couple of changes within the July 26, 2013 Opinion that differ from the withdrawn April 12, 2013 Opinion so we will not post a new digest. The replacement Opinion directs that on remand the trial court also determine whether the GRAT checking account should be included within the marital estate. The replacement Opinion also addresses the valuation of a parcel of real estate and the court held that the factual finding was not clearly erroneous.

Divisibility of Disability Pension Later Reclassified as Ordinary Retirement Pension, Attorney’s Fees, Bailey v. Bailey, Case Digest, Ky Court of Appeals

Buddy Lee Bailey v. Linda Beth Bailey, No. 2012-CA-000508-MR

Published: Affirming

County: Spencer

Facts

Husband filed for dissolution of the parties’ thirty year marriage in 2004. During his employment, Husband actively participated in his employer’s retirement pension plan. Subsequent to the parties’ separation, Husband was injured and filed for short term disability. The order entered by the Court after mediation included a provision that Husband was to provide to Wife information concerning the retirement account, including the policy, and all information regarding Husband’s disability. Wife was not provided with this information. The trial court entered a limited decree of dissolution in December 2004. In August 2006, the Court entered a judgment against Wife for the value of Husband’s personal property not returned to him. Husband filed a motion in June 2008 to satisfy the judgment. Since the pension issue had not been resolved, the Court also granted Wife’s request that the parties exchange all documents relating to retirement or disability accounts.

In June 2011, the Court entered an order holding that Husband’s retirement pension was not subject to division as marital property because Husband’s retirement pension was converted into a disability pension. Wife filed a motion to alter, amend or vacate the order because she was never provided with the retirement policy documents. Husband was deposed, and Wife received the documents. In January 2012, the Court granted Wife’s motion to alter, amend or vacate the judgment, holding that Wife was entitled to entry of a Qualified Domestic Relations Order allocating one half of the pension benefits accrued from the date of marriage to the date of the entry of the limited decree of dissolution. The court found that Husband’s disability pension would be converted to an ordinary retirement pension when Husband reached the age of 62. Wife was also ordered to satisfy the August 2006 judgment against her, plus statutory interest. Husband filed a motion to alter, amend or vacate the Court’s January 2012 order. The Court denied Husband’s motion after a hearing, and Husband appealed.

Analysis

When the Court ruled on the divisibility of the retirement plan, the relevant plan documents had not been made available to Wife or the Court. Because a full and candid disclosure of the parties’ assets is necessary for an equitable division of property, the Court did not abuse its discretion in granting Wife’s motion. Once obtained, the policy clearly stated that when Husband turned 62 his disability pension would end, and he would become eligible for a normal retirement pension. The Court of Appeals distinguished this case factually from the Kentucky Supreme Court’s decision in Holman v. Holman, 84 S.W.3d 903 (Ky. 2002), which held that disability benefits which replace future income should not be classified as marital property. Husband’s disability benefits would be reclassified on a date certain, which was different from the facts presented in Holman. The ordinary pension benefits that were accumulated during the marriage that would be reclassified as normal pension funds when Husband turned 62 were marital property. Any other conclusion would be inequitable because it could allow a spouse to prevent the other spouse from his or her share of retirement benefits through an election of disability coverage.   

On the attorney’s fees issue, Husband argued that the Court failed to rule on the motion. Wife argued that the Court’s silence on the matter was a denial of attorney’s fees. The Court of Appeals agreed with Wife, stating that attorney’s fees are entirely within the discretion of the trial court, and the Court in this case clearly considered the financial resources of both parties throughout the lengthy proceedings. Nothing in the record could demonstrate that the Court abused its discretion in failing to award attorney’s fees.

Affirmed.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates