Divorce Law Journal

Effect of Estate Planning Trust on Division of Property in Divorce Proceedings, Post-judgment Interest, Case Digest, Ensor v. Ensor, Ky Court of Appeals

Larry James Ensor v. Deborah Lynn Ensor, 2010-CA-001660-MR, 2010-CA-001699-MR and 2010-CA-002048-MR

Published: Affirming in part, Reversing in part, and Remanding

County: Oldham

 FACTS:

Husband and Wife were married on June 14, 1980. Husband’s family owned an automotive parts remanufacturing business, which was very successful for many years. When business declined, Husband and his two brothers invested money from the family business into several real estate holdings, which produced significant rental income. Husband and the brothers, in an effort to minimize tax liabilities, utilized the assistance of attorneys and accountants and created a Grantor Retained Annuity Trust (GRAT). A GRAT, according to the Court of Appeals, is an estate planning tool wherein assets are transferred to a trust and ultimately to other beneficiaries so as to avoid estate taxes upon a donor’s death. Husband and his brothers also created a partnership, with all of the brothers and their wives executing general warranty deeds for all of the partnership’s property, which transferred any dower interest the wives had, or might have had, in the properties. Husband created his irrevocable GRAT and transferred his limited partnership interest while retaining a small general partnership interest. Husband received from the GRAT quarterly payments of $72,295 for nine years. The funds were used for the couple’s personal and joint expenditures. Husband’s children were beneficiaries of the GRAT as well, and received their portions of the GRAT; a gift tax return was filed with the IRS. Wife also retained an interest in the GRAT when the annuity payments terminated. Although divorce was not contemplated in the GRAT instrument, Wife would retain an interest in the GRAT if Husband died, until her death or remarriage.This arrangement avoided up to one million dollars in tax liability.

 Husband and Wife initiated divorce proceedings in 2004. A limited divorce decree was entered in January 2005, which reserved rulings on the division of marital assets. Wife argued that she did not fully understand the extent of the assets transferred to the GRAT and would have never agreed to release her share of assets valued at millions of dollars. Wife sought her interest in the property of the GRAT.

 The court held a five day trial of the property division in April and May of 2006. After additional filings and extensive motion practice followed, the court requested calculations consistent with its draft opinion of the issues. The court issued its opinion May 28, 2008, finding that the GRAT was valid and legally created and that Wife was entitled to a one-half interest in her marital portion of the GRAT. The court held additional hearings on the value of the GRAT property. On February 18, 2010, the court entered findings of fact and conclusions of law on the value of the GRAT and ordered Wife’s was entitled to a payment of $1,769,718.00, which was later reduced by the court to $1,410,106.00 plus post-judgment interest calculated at five percent. Husband appealed, alleging multiple errors; Wife filed a cross-appeal and a direct appeal on the issue of post-judgment interest. ANALYSIS:

 The Court of Appeals found that Wife was not defrauded when the GRAT and partnership interests were created. Husband did not defraud Wife into signing any documents or coerce her to release her interest in property, and the trust instrument did not contemplate divorce. Wife also failed to join the GRAT and its trustees, beneficiaries, or contingent beneficiaries, all of whom would have been necessary parties in an action seeking to avoid the trust.

 The Court further found that the funding of the irrevocable trust removed the transferred property from the marital estate. KRS 403.190(1) and other relevant case law define whether an asset is marital or non-marital for purposes of division.  The court must determine whether the asset is marital or non-marital, assign each party his or her non-marital property, assign each party’s interest in property with both marital and non-marital components based on the evidence and equitably divide all marital property. The formation of the GRAT in this case was for a valid estate planning purpose and is nearly identical to the estate planning scheme in Gripshover v. Gripshover, 246 S.W.3d 460 (Ky. 2008). Wife received an adequate benefit from the GRAT income because she and Husband enjoyed the quarterly annuity payments over the years, which exceeded $2,600,000. It was proper that the trial court accepted Wife’s expert in the accounting of the disbursements.

Because the GRAT was improperly included in the marital estate, the Court remanded for further determination concerning the proper valuation of the marital estate and division thereof without reference to the GRAT.  Because property division and equalization payments would be different without inclusion of the GRAT, the issue of maintenance was also remanded, but the Court of Appeals made no finding of whether a maintenance award would be appropriate in this case.

 Husband also argued that $60,000 was erroneously assigned to him in the valuation of marital assets because he used those funds for a marital purpose. Trial courts are given wide discretion in this area, and the court did not find Husband’s testimony that the funds were used for a marital purpose credible. The trial court found that those funds had been used for attorney’s fees, non-marital debts and other personal expenditures, which was not clear error.

 Wife challenged an award to Husband of accounts receivable for loans made during the marriage. Since Wife was awarded one-half of the accrued interest payable to Husband on a particular loan, any further award to Wife would result in a double recovery. Therefore, the court did not err in preventing a second division of this asset. 

 Wife also appealed the trial court’s decision to award her an unfinished vacation home in Gulf Shores, Alabama, valued at $2,050,000, and making Wife responsible for all taxes, claims and costs associated with the property. Wife insisted on retaining the home against the advice of trial counsel and the court. Wife argued that Husband should be responsible for his portion of the taxes and other costs associated with the property before he conveyed the property to her in 2010. The trial court allocated unpaid construction costs, insurance premiums and other costs to each spouse at the time of the divorce decree. Since the other costs were incurred after the divorce decree was entered and was incurred solely for Wife’s benefit, the debts were non-marital, and Wife is responsible for all of the costs associated with the property after that date.

 On the issue of post-judgment interest, the Court of Appeals upheld the trial court’s order award of five percent post-judgment interest.  The trial court concluded that five percent was the rate of return on investments during the litigation and imposing a higher rate would be inequitable. The Court of Appeals agreed, stating that the post-judgment interest rate is mandatory only to money awards containing deferred payments for portions allocated to the non-paying spouse. In this case the trial court weighed the equities, including that Wife’s award was to be paid in a lump sum and Husband was given a relatively short amount of time to make full payment.

Affirmed in part, reversed in part and remanded.

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

Contempt Affirmed for Failure to Submit to Genetic Testing to Determine Paternity, J.K. v. N.J.A., el al, Ky Court of Appeals

J.K. v. N.J.A.; Honorable Linda Bramlage, Boone County Family Court Judge; and Honorable Bailey Taylor, 2012-CA-000897-ME

Published: Affirming

County: Boone

ISSUE: Whether a man, with whom Mother admits having an affair and living with for about fifteen months-until mere days before Child’s birth-is entitled to know whether Child is his biological son.

FACTS:

Mother gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom she plans to remarry, is the father and listed him as such on Child’s birth certificate. Despite an order from the Family Court compelling Mother to undergo genetic testing for herself and Child, neither was tested due to Mother’s maneuverings.  The Family Court entered an order following a hearing on a paternity complaint by Putative Father.

The Family Court found Mother in contempt of multiple  orders from the Family Court, which ordered her to submit herself and Child to genetic testing by a later date or serve 180 days in jail. Mother refused to comply with the Family Court’s orders.

 ANALYSIS:

 Mother alleged that she and Child should not have been ordered to complete the genetic testing because no state action was involved; Putative Father did not qualify as such under KRS 406.21 and could not challenge paternity; Ex-Husband was presumed to be Child’s father because Child was born less than five months before the parties’ divorce; the Family Court’s order violated Mother and Child’s constitutional right to privacy; and the Family Court should not have ordered the maximum contempt penalty for Mother’s failure to comply with the court’s order.

 KRS Chapter 406 is the means by which courts determine fatherhood. While a child born during lawful wedlock may be presumed to be the husband’s child under KRS 406.11, that presumption is rebuttable, so that a legal finding of paternity is not denied to a putative father. KRS 406.091(2) mandates genetic testing upon a request of a party supported by an affidavit. Putative Father in this case made such a request, and it was the Family Court’s duty to order the genetic testing. Mother should have requested written findings of fact and conclusions of law from the Family Court regarding whether Putative Father qualifies as a putative father under the statute and whether he had standing to assert a claim of paternity. However, Putative Father presented sufficient evidence on the record that he had sufficient access to Mother to make him Child’s father. Mother and Putative Father lived together at the time of conception and engaged in sexual relations, and Putative Father was present when Mother took a pregnancy test, which was subsequently confirmed by a doctor. Mother told Putative Father repeatedly that he was Child’s father during the pregnancy, and Putative Father provided Mother with food, shelter, clothing and medical care during the pregnancy. Putative Father also opposed abortion and adoption options when they were presented by Mother. Thus, Putative Father had standing to challenge paternity and request genetic testing. Holding otherwise would deny Putative Father the right to prove his claim of paternity and deny Child the right to develop a relationship with his biological father. Furthermore, Mother offered no proof that would exclude Putative Father as a potential father of Child, especially since she told an Ohio family court in proceedings with Ex-Husband that she was not pregnant.

 Mother was ordered to complete genetic testing on herself and Child on four separate occasions and violated each order. The 180 day jail sentence for contempt was completely appropriate. Her attempts to halt Putative Father’s claims and the fact that she could have purged the contempt by complying with the Family Court’s order was sufficient to uphold the sentence. Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

           

Applicability of New Spouse’s Income and Expenses for Children of New Marriage in Modification of Maintenance Award to Former Spouse, Case Digest, Tudor v. Tudor, Ky Court of Appeals

Chauncey J. Tudor v. Melanie K. Tudor, No. 2012-CA-000110-MR

Published: Reversing and Remanding

County: Jessamine

FACTS:

Husband and Wife initiated divorce proceedings in 2009. After extensive hearings and a trial, Husband was ordered the custodial parent and ordered to pay $1,700 per month in maintenance for ten years. The divorce decree was entered in 2009.

In 2011, Husband filed a motion seeking disclosure of financial documents and motions for modification of child support and maintenance. The trial court’s findings of fact and conclusions of law only addressed Husband’s maintenance obligation. Relying primarily on the income of Husband’s new wife and citing expenses relating to their marriage and the children of their marriage, the court determined that the maintenance obligation should not be altered because the payment amount was not unconscionable. Husband appealed.

ANALYSIS:

The issue presented to the court was whether a new spouse’s income, and the couple’s ability to provide for children of the new marriage, should be considered when determining whether maintenance owed to the former spouse should be modified. KRS 403.250(1) states that maintenance obligations may be modified “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” When a party seeks to modify maintenance obligations, the court compares the parties’ current circumstances to the circumstances at the time the decree was entered. Modification of maintenance looks solely to whether the obligor’s circumstances have changed in a substantial and continuing way such that the order is rendered unconscionable. 

The trial court in this case determined that the Husband was earning $96,000 per year at the time the decree was entered, and Husband earned only $48,000 per year when he sought modification of the maintenance award. Rather than focusing on the income of Husband’s new wife and expenses relating to his new children, the trial court should have focused on whether the change in Husband’s income is substantial and continuing such that the award is unconscionable. If the trial court is determining whether the award should be reduced, the trial court may consider the extent to which Husband’s relevant expenses have been reduced as a result of his new marriage. Although not raised in this case, whether an obligor is voluntarily underemployed or whether retirement, if applicable, was reasonable could prevent the modification of a maintenance award.

Judge Maze wrote separately, concurring in the judgment. The trial court misapplied the facts to the law in this case because a spouse’s decision to remarry and start a new family does not relieve the spouse of the obligation to pay maintenance awarded to a former spouse. The new spouse has no obligation to contribute to the former spouse’s support. However, other facts in the case could support the trial court’s decision to deny the maintenance modification. The trial court should examine further on remand whether Husband’s income resulted from voluntary underemployment, general economic conditions, his own choices, or some combination thereof. Evidence that Husband in the past found well-paying employment in auto sales even during difficult economic and personal circumstances could indicate that Husband failed to show that the change in his circumstances is not likely to be substantial and continuing.

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

Termination of Parental Rights, Case Digest, KY Court of Appeals, C.A.W. and T.L.M. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; B.L.M., an Infant, and S.M.M., an Infant

C.A.W. and T.L.M. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; B.L.M., an Infant, and S.M.M., an Infant, NO. 2012-CA-000875-ME

Published: Affirming

County: Jefferson

FACTS:

On September 7, 2011, the Cabinet for Health and Family Services filed a petition for the involuntary termination of parental rights against Mother and Father. The Cabinet had filed two dependency petitions regarding the children, alleging that they were abused or neglected under KRS 600.020(1). The September 23, 2009, petition alleged that the children had been left unsupervised without adequate food and that the parents acknowledged that their substance abuse issues interfered with their ability to care for the children. In a second dependency petition filed in February 2010, the Cabinet alleged physical abuse against one of the children during a supervised parental visit, lack of supervision of the children, and the parents’ substance abuse issues. After a temporary removal hearing, the children were placed in the custody of the Cabinet.  

Throughout the dependency cases, the parents were ordered to participate in supervised visitation, remain clean and sober, comply with court orders, complete a psychological assessment, complete a substance abuse assessment, and complete parenting classes. These orders were incorporated into a case plan signed by the parents. The psychological assessments showed that Mother’s intellectual functioning was in the borderline range and that she could not care for young children without significant outside assistance. Mother also acknowledged anxiety, depression and a nerve disorder. Father’s psychological testing revealed cognitive function in the extremely low range and recommended parenting education courses.

Mother and Father did not fully comply with the recommendations in the assessments. Mother tested positive for alcohol, and Father tested positive for cocaine during random alcohol and drug screenings. Neither parent provided proof of completion of the ordered parenting classes or attendance at Alcoholics Anonymous meetings.

The Family Court found that the children would continue to be abused or neglected if returned to parental custody and that termination of parental rights was in their best interest. The parents’ mental and substance abuse issues made it clear that they would not be able to provide even minimally acceptable care to the children. The court also found that the children had been stable since their placement in foster care. The parents appealed.

ANALYSIS:

In order to terminate a parent’s rights, Kentucky courts must find by clear and convincing evidence that the child has been abused or neglected, that termination is in the child’s best interests and that at least one of the grounds listed in KRS 625.090(2) exists.  The trial court has a great deal of discretion in the involuntary termination of parental rights. The parents argued that the Family Court erred in terminating their rights because the Cabinet did not meet its burden.

Since the parents stipulated to the abuse and neglect of their children alleged in the two dependency petitions, there was ample evidence to support the Family Court’s finding that the children were abused and/or neglected. The termination was in the best interest of the children because the court considered how the parents’ mental and cognitive disabilities affected their parenting.  The Cabinet also made all reasonable efforts to reunite the children with their parents before filing the termination petition. The parents’ continued disregard for court orders and progress of their children while in the Cabinet’s custody demonstrates that the Cabinet could not have helped the family reunite. At the time of the termination hearing, the children had been in the Cabinet’s custody for twenty-four months. The parents had failed to provide essential food, shelter, clothing and medical care to the children during that time, thus the children had been abandoned for more than ninety days as required under Kentucky law. Furthermore, the children had formed a strong bond with the foster parents and no longer required counseling.

The Family Court found that a litany of grounds justified the termination of parental rights, and that finding was not clearly erroneous.

Affirmed.

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

UCCJEA Divests Family Court of Jurisdiction when Parents and Child have Left Kentucky, Ky Case Digest, Wahlke v. Pierce

Wahlke v. Pierce, No. 2012-000022-ME

Published: Reversing and Remanding

County: Campbell

FACTS:

Mother and Father were married in 2000 and filed for dissolution of the marriage in 2008. When the petition was filed, Mother, Father and Child born of the marriage lived in Campbell County, Kentucky. After the dissolution was filed, Mother, with Child, and Father moved separately to Ohio. Neither the child nor the parents lived in Kentucky when the divorce decree was entered in 2009. Mother was awarded sole custody of Child, and Father was awarded visitation and ordered to pay child support. The parties’ continued to litigate post-decree issues related to child support, visitation and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to relocate and notified the family court that she wanted to move with Child to Abilene, Texas. Mother also filed a motion to modify Father’s visitation schedule to reflect the distance between the parties. The Family Court entered an order granting the motion to relocate and amending the visitation schedule.

Father filed a motion to reconsider the court’s ruling based on a lack of jurisdiction, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court denied the motion, stating that there was substantial information available in Kentucky regarding the child’s care, protection, training and personal relationships, and Father waived the issue by not raising it until the motion to reconsider.

Father appealed, arguing that the Family Court lacked subject matter jurisdiction to modify the original child custody determination under the UCCJEA because there was no exclusive, continuing jurisdiction because neither the parents nor the child lived in Kentucky.

ANALYSIS:

The UCCJEA, codified in Kentucky law, governs disputes concerning the state’s jurisdiction to decide child custody and visitation matters. The Family Court’s jurisdiction to modify a custody arrangement is determined at the time the motion to modify is filed. The Family Court misinterpreted KRS 403.824(1) because the court no longer had exclusive, continuing jurisdiction over the custody matter. A family court’s jurisdiction is exclusive and continuing until one of two circumstances has occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child nor the parents of the child reside in that state. Therefore, unless a modification of custody has been filed, the state loses exclusive, continuing jurisdiction when the parents, persons acting as parents (if applicable), and child have all physically left the state to live elsewhere. Even if a significant connection existed and if certain evidence was available about the child in Kentucky, the relocation of both parents and the child outside of Kentucky before the filing of the modification divested the Family Court of exclusive, continuing jurisdiction.

Reversed and remanded. 

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

 

Role of Guardian ad Litem, modification of custody, Case digest, Ky Court of Appeals, Morgan v. Getter

Morgan v. Getter, 2012-CA-000655-ME

Published:Affirming

County: Campbell

Ex-Wife appealed Family Court’s order granting Ex-Husband’s motion requesting that minor child relocate to reside with him in Florida.

Facts:

Husband and Wife with two children from the marriage divorced in 2003. Ex-Wife had sole custody of the children, and Ex-Husband visited the children periodically with supervised visitation. When the oldest child reached the age of majority, she moved to Florida to attend college near Ex-Husband. Ex-Husband filed a motion for the younger daughter to reside with him in Florida. The Family Court appointed a guardian ad litem (GAL) to represent the child. The GAL filed a report with the court, and the court held a hearing, later ordering that the child could relocate to Florida and live with Ex-Husband. Ex-Wife appealed.

Ex-Wife argued that the court erred when it did not allow her to call the GAL as a witness and denied her request to strike the GAL’s report. Ex-Wife also argued that the court did not follow the law governing a change of custody and improperly determined that the relocation was in the child’s best interest. 

Analysis:

The Kentucky Family Rule[s] of Practice and Procedure provide that a GAL may be appointed by the court, but the rules specifically differentiates between GALs and other professionals who may be used in a custody proceeding. The GAL in this case was appointed to represent the child. The GAL was a licensed attorney, and would have violated the ethical rules governing confidential communications and acting as an advocate when the lawyer is likely to be a witness. Although Kentucky law does not specifically define the role of a GAL in custody proceedings, the Family Court properly denied the GAL’s testimony due to the ethical concerns presented.

The court also properly denied Ex-Wife’s motion to strike the GAL report. The court appointed the GAL to counsel the court in formulating a decision. The court has considerable discretion in this area, and it would have been a waste of resources to disregard the report. Because of the inherent conflict and potential for prejudice created by the ambiguity in the statute, the proper role for a GAL in child custody issues should be scrutinized by the General Assembly or Supreme Court. A review of the law in other jurisdictions regarding the role of GALs in custody proceedings did not yield consistent results. Some states prohibit a GAL from testifying, while other states have statutes explicitly stating the role of the GAL and the GAL report and under what circumstances a GAL can be called as a witness and cross-examined. Nevertheless, in this case, the testimony of the witnesses at the custody hearing was thorough and was relied upon more than the GAL report in the court’s decision. Any error from allowing the GAL report to be considered was harmless.

KRS 403.340(3) provides that a court must not change a prior custody determination, unless there is a change in the circumstances of the child or the custodian, and the modification is in the best interests of the child. The Family Court found that Ex-Husband had increased his visitation, that the older sister had moved away from the home to live with Ex-Husband, and the relationship between Ex-Wife and the child had deteriorated. The relocation was in the child’s best interest because Ex-Wife, Ex-Husband, the older sister, and the child all testified at the hearing, and each of Ex-Wife’s concerns about the relocation were addressed in the court’s order. Overall, the court accepted the child’s explanation of the toxic relationship that had developed between her and her mother.

Judge Denise Clayton wrote separately, concurring with the result. Judge Clayton stated that it was improper to admit the GAL’s report because the GAL was the child’s legal representative. The court reached the correct result, but the parties should have never been in the position where the child’s legal representative was also serving as an expert to the court.

Affirmed.

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

Application of CR to Domestic Violence Proceedings, Case Digest, Ky Court of Appeals, Wolfe v. Wolfe

Wolfe v. Wolfe, 2012-CA-000578-ME

To Be Published:   Affirming  

County:  Laurel

Mom appeals denial of DVO on child’s behalf claiming that Kentucky Rules of Civil Procedure do not apply to DV proceedings and she was denied opportunity to offer proof during DV hearing.

FACTS:

On 10/28/11, Mom filed for EPO on Daughter’s behalf.  EPO was issued and Dad was ordered to appear on November 7, 2011.  That hearing was continued due to lack of service on Dad.  New Hearing was set for November 21, 2011.  Both parties appeared along with the Cabinet.  Cabinet reported their investigation was not complete, and the hearing was continued several more times until February 23, 2012, after the Cabinet investigation was complete.

At that hearing, Mom moved for continuance to obtain certified medical records from University of Kentucky Healthcare.  Though she had filed a Notice of Intent to introduce medical records, University of Kentucky had refused to honor subpoena, stating the records would not be produced without a court order. Dad objected, stating that Mom had sought the records without notice to him, without giving him an opportunity to review the medical records, and therefore not in compliance with Kentucky Rules of Civil Procedure.  Trial Court denied motion to continue.  At the conclusion of the hearing, Trial Court denied the Petition and Mom appealed.

ANALYSIS: 

Mom claimed DV proceedings are statutory summary proceedings to which ordinary Rules of Civil Procedure do not apply.  She argued that DV proceedings are meant to be expedited proceedings with a specific timeline prescribed by statute, and this timeline does not provide enough time to comply with Kentucky Rules of Civil Procedure.  CA found that, as in DNA proceedings, though there is shortened time to hold hearings, continuances alleviate any injustice this may create.  As this case was continued a number of times, no injustice occurred.

Mom also complained that she was unable to ask a question of a witness, but as there was no avowal testimony, this error was not preserved for review.

FC Affirmed.

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

 

CR 60.02 motion for relief from child support for non-biological child, case digest, Hughes v. Hughes, Ky Court of Appeals

Hughes v. Hughes, 2012-CA-000077-ME

Published:   Affirming  

County:  Jefferson

Ex-Husband appealed FC’s order denying his CR 60.02 to terminate child support for child not biologically related to him.

FACTS:

While Husband was serving in the Navy, Wife filed for divorce.  Paternity of the four minor children was not placed an issue in the petition.  Subsequent to the filing of the petition, but prior to entry of the decree, the parties submitted privately to paternity testing of the youngest child.  The Decree of Dissolution was entered prior to the parties’ receipt of the result of the paternity test.  The Decree ordered child support for all four children.  Subsequently, the parties received the results of paternity testing indicating that the youngest child was not the biological child of Ex-Husband.  Ex-Husband continued to pay full amount of child support.  Some years later all four children learned that Ex-Husband was not youngest child’s biological father. 

All of Ex-Husband’s biological children were emancipated by 2010.  Ex-Husband nonetheless continued to pay the full amount of child support for his unemancipated, not biologically related child.  Ex-Husband’s income had increased substantially at this time, while Ex-Wife was receiving state assistance due to her status as a full-time student with a part-time job.  Thus, in 2011, the Cabinet filed a motion to intervene and to modify child support on Ex-Wife’s behalf.  In response, Ex-Husband filed a CR 60.02 motion to terminate child support based on emancipation of his three biological children and the fourth child being not biologically related.  FC denied 60.02 motion, finding that it was not filed within a reasonable time, and Ex-Husband was therefore estopped from seeking relief from his child support obligation.  FC also increased child support from $863.64 to $1,009.00 per month for the nonbiologically related child. 

ANALYSIS:

“Reasonable time” requirement of CR 60.02 is within FC’s discretion.  Given that Ex-Husband had known since 2001 that he was not the biological father of the youngest child but continued to act as her legal father, FC did not abuse its discretion in denying his motion.  Further, it was not necessary for FC to consider whether doctrine of paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion.  CA held that FC correctly ascertained that the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for the payment of child support.  It is in youngest child’s best interest for her legal father, Ex-Husband, to contribute adequate child support and supportive parenting.

Affirmed.

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

Digest of Shafizadeh, multiple issues, Ky Court of Appeals

Shafizadeh v. Shafizadeh, 2010-CA-000758-MR

Issue:  jurisdiction, findings of fact, imputation of income, attorney fees, modification of child custody and timesharing, garnishments, CR 60.02

Published:   Affirming in Part, Reversing in Part, and Remanding

County:  Jefferson

In three separate appeals, Ex-Husband appealed numerous orders of FC.

FACTS:

Parties were married for twenty-six years, and at time that Wife filed for dissolution, they had two minor children and two adult children.  Wife worked as a bank manager during the marriage but left that employment in 2005 to provide full-time care for the parties’ children.  Husband is a businessman and a licensed attorney. During the marriage, Husband incorporated three different businesses, including his law firm.  In 2007, his income from the businesses was $40,000.  The parties entered a Marital Settlement Agreement dividing these assets, and Husband was required to make a cash equalization payment to Wife as a result.  They also entered a custody agreement in which they shared joint custody and a parenting schedule.  A trial was held on child support, maintenance, and division of the remaining marital property.  FC divided the value of the remaining marital assets equally between the parties, restored two nonmarital assets to Wife, and allocated debt.  FC also awarded Wife $750 “open-ended” monthly maintenance and attorney’s fees of $6,412.  Lastly, FC concluded Husband was voluntarily under-employed, imputed earnings to him of $60,000 per year, and set child support at $859 per month. 

ISSUES AND ANALYSIS:

Jurisdiction: 

Before FC issued its opinion, Husband filed petition to disqualify judge.  FC subsequently entered its opinion, and SC later denied Husband’s petition.  Husband claimed because petition for disqualification was pending when FC issued its opinion, FC had no jurisdiction at that time.  CA held that while petition was pending, FC lacked jurisdiction over the particular case (but not subject matter jurisdiction), rendering FC’s opinion premature, and voidable, depending on the outcome of SC’s opinion.  As SC denied the petition, the opinion and order was given full force and effect. 

Dissipation and Request for Findings of Fact:

Husband claimed FC failed to consider and issue findings regarding funds Wife spent on Christmas gifts, in loans to relatives, and for household expenses and maintenance.  Wife contended FC adequately addressed all issues in its order, and even if not, Husband failed to address this complaint in his Motion to Alter, Amend or Vacate.  CA agreed with Wife that because Husband failed to raise the issue in his CR 59 motion, he could not raise it on appeal. 

Maintenance:

Husband claimed that because Wife received $529,301 in marital assets plus her nonmarital assets, she did not lack sufficient property to provide for her reasonable needs; furthermore, he claimed that she is able to support herself through reasonable employment; therefore, she should not be awarded maintenance.  CA found FC’s findings were supported by substantial evidence regarding the entitlement to and the amount of maintenance, but agreed with Husband that FC erred in awarding  “open-ended” maintenance, holding that such an award thwarts the goal of severing all ties between the parties.  This issue was remanded to FC.

Child Support and Imputation of Income:

FC found that Husband operated businesses that do not appear to make a profit and that he earned more than was reflected on his tax returns, and also took note of his earning capacity as an attorney.  Husband claimed that FC erred by basing its opinion on the business’ profitability in the past.  Wife countered that Husband chose not to use his skills and education and concentrated his efforts on non-profitable businesses and chose not to accept legal clients.  CA held that although Husband’s businesses may not be currently profitable due to the economy, he was not fully using his entrepreneurial and business skills and could earn more in the legal industry. 

Attorney Fees:

Husband claimed no imbalance of financial resources existed to support attorney fee award.  CA disagreed, noting difference in incomes and distribution of debt. 

Modification of Child Custody and Timesharing:

1. Wife sought to relocate to Louisiana with minor children and filed Motion to modify parenting time schedule.  FC granted Wife’s motion.  Husband filed writ petition with SC claiming Wife’s motion was actually motion for change of custody that lacked requisite affidavits, relying on Brockman v. Craig, though SC overruled Brockman to the extent it was inconsistent with Pennington.  SC rejected Husband’s writ and CA did as well. 

2.  Husband filed motion to modify joint custody or, alternatively, modify time-sharing, while Wife’s motion regarding relocation was pending.  Attached to Husband’s motion were 4 affidavits and 2 declarations.  FC denied his motion, finding that it was filed in less than 2 years from the original order and was missing the requisite 2 affidavits.  CA held that declarations could not meet the affidavit requirement because they were not sworn testimony.  CA held that FC erred in dismissing the motion for lack of jurisdiction, however, as at least 2 affidavits were submitted.  CA directed FC, on remand, to determine whether affidavits state sufficient facts to justify a hearing on the motion. 

Garnishments:

Wife sought garnishments for attorney fee award.  Husband claimed his bank account could not be garnished because it held only his wages.  CA disagreed, holding there is no statutory protection for wages placed in the debtor’s control/possession.  Husband also requested and was denied sanctions and attorney fees because his social security number was included on the garnishment orders.  CA held this decision was within FC’s wide discretion, and FC did not abuse such discretion.  Lastly, as Husband filed his motion pro se, there were no attorney fees to recoup. 

CR 60.02:

Husband filed CR 60.02 motion to correct attorney fee award, claiming $945 of the award was incurred by Wife’s attorney in responding to Husband’s EPO appeal, in which CA did not grant Wife’s request for sanctions; therefore, Husband claimed, FC could not award attorney fees to Wife related to that appeal.  CA noted that a chief factor guiding the grant of CR 60.02 relief is the moving party’s inability to present his claim prior to the entry of the order sought to be set aside.  CA held that Husband could have and should have raised this issue in his direct appeal of the order awarding attorney fees. 

Affirmed in Part, Reversed in Part, and Remanded.

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

Termination of Parental Rights, Case Digest, C.J.M. v. Com, Ky Court of Appeals

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

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000590-ME

and

C.F.A. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000591-ME

Published: Opinion Affirming

County: Garrard

C.J.M. (“the mother”) and C.F.A. (“the father”) appeal in separate cases from the order and judgment of Garrard Circuit Court terminating their parental rights.

C.K.A. (“the child”) was born on May 10, 2010 to the parties who lived together but were not married. On June 1, 2011, the Cabinet for Health and Family Services of the Commonwealth of Kentucky (the Cabinet) filed a petition for involuntary termination of the parental rights of both the mother and the father.  Shortly after the child’s birth, she tested positive for marijuana.  During a home visit at the parent’s residence on May 19, 2010, the worker and a colleague observed a large amount of beer cans and beer cases under the porch, and determined that the child did not have a crib or bassinet.

The mother admitted using marijuana during and prior to pregnancy and disclosed that she had two other children from a different relationship who were placed with their father in Ohio that she had not seen in a long time.  The father objected to taking a drug test, admitted marijuana use and stated he was not going to stop.  The Cabinet workers were concerned about their own safety because of the father’s erratic behavior.  The child, pursuant to an emergency custody order, entered foster care. The father’s aunt was given temporary custody, but when difficulties arose, the child was placed with a foster family with whom she still resided at the time of the trial.

At an adjudication hearing in August, 2010, the court found that the father neglected the child and the mother had stipulated to neglect.  The family court entered a disposition order and adopted the Cabinet’s case plan.  Both parents and the child were appointed counsel, but the parents fired their appointed counsel during the dependency proceedings.  Counsel was reappointed for the termination action.  Both parents also filed civil rights action in Garrard Family Court and United States District Court, all of which were dismissed.  During the dependency action, the Cabinet prepared several case plans requiring certain actions by the parents and payment of child support from each of them.

Subsequently, the father become increasingly hostile and resisted working the Cabinet’s case plan while the federal case was pending.  In September, 2010, the father requested waiver of further court appearances and waiver of reasonable efforts to reunite him with the child.  In October, 2010 the mother went to a domestic violence shelter and stayed about one month.  In February, 2011, the father was arrested and charged with terroristic threatening against a Cabinet worker and her supervisor.  He pled guilty and was ordered to have no contact with the worker or her supervisor.

On April 1, 2011, the family court held the annual permanency planning required by the statute and, after consideration of the parents’ progress, changed the goal for the child from reunification to adoption.  On June 1, 2011, the Cabinet filed a petition for involuntary termination of parental rights and the trial was conducted February 7, 2012.  At trial, the Cabinet testified that the child was doing well, had been in foster care approximately two years, and the foster family wanted to adopt her if given the opportunity.  The mother testified that the Cabinet failed to use reasonable efforts to reunite the child with her.  She described her various difficulties with transportation, finances, and communication, and discussed her failure to complete tasks related to her own case plan.  The father testified that termination of his parental rights was not warranted because the Cabinet did not use reasonable efforts to reunite him with the child.

On February 27, 2012, the Garrard Circuit Court entered Findings of Fact, Conclusions of Law, and an Order Terminating Parental Rights and Judgment.  The Order explained that both parents had abandoned the child for a period of at least 90 days, had failed to make adequate efforts in the child’s best interests so she could be returned to their custody, had failed to protect the child’s right to a safe, nurturing home, and finally it was in the child’s best interest to terminate the mother's and father’s parental rights.  Pursuant to KRS 600.020(1), the child was abused and neglected.  The family court thus determined that under KRS 625.090, it had been established by clear and convincing evidence that the parents were not providing a safe, nurturing home, and there was no reasonable expectation of significant improvement in the immediately foreseeable future.  Both parents appealed from these orders and are separately represented.

Both parents argue that the Cabinet failed to make reasonable efforts to reunite the child with them and that they were without effective assistance of counsel during critical phases of the juvenile case.  The Cabinet’s position is that clear and convincing evidence supported the termination and the parents waived representation during the dependency proceedings.

KRS 625.090 provides the statutory direction for a circuit court to involuntarily terminate parental rights.  There must exist at least one of the ten factors enumerated in the statute.  Further, the Cabinet must make reasonable efforts to reunite the child with the parents.  The Court of Appeals found sufficient evidence to remove the child from the home to ensure her safety.  The child tested positive for cocaine at birth and both parents admit they used marijuana before and during the pregnancy.  Neither parent had seen the child for more than one year, they were not working on the case plan, and both had child support arrearages.

With respect to the Cabinet’s obligation to make reasonable efforts toward reunification of the family, the Court of Appeals found that the mother was offered many services associated with her case plan, but did not avail herself of them.  Likewise, the father ignored efforts to work toward reunification and chose not to see the child.  On the issue of failure to provide effective assistance of counsel, the Court of Appeals noted that the parties dismissed their respective counsel during a portion of the dependency action. The Court of Appeals found that neither party had proven that their decision to be unrepresented occurred at a critical stage.

The Garrard Circuit Court’s order terminating the parental rights of the mother and the father is affirmed.

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

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

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

Published:   Striking Appellant’s Brief and Dismissing Appeal   

County:  Laurel

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

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

Affirmed.

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

Rights of Third Parties to Enforce Judgment in Divorce Proceeding, Case Digest, Fortwengler v. Fortwengler, Ky Court of Appeals

Fortwengler v. Fortwengler, 2011-CA-0018933-MR and 2011-CA-002077-MR

Published:   Affirming   

County:  Jefferson

Ex-Husband appealed FC’s order terminating his garnishment of maintenance payments to Wife for satisfaction of debt to Ex-Husband’s father as well as FC’s order denying Ex-Husband’s parents’ motion to be joined as parties to the dissolution action in order to collect the debt.

FACTS:

When parties divorced, FC ordered that $20,000 owed to Husband’s father was a marital debt and that each party should be equally responsible.  Ex-Wife appealed from this order.  While the appeal was pending, Ex-Husband filed a non-wage garnishment against Ex-Wife to collect the debt, in the amount of $1,200, the monthly amount of maintenance he had been ordered to pay to her.  Ex-Wife filed motion to quash the garnishment and an affidavit challenging the garnishment, contending that FC did not have jurisdiction of the issue as an appeal was pending, that no judgment had been issued to Ex-Husband’s parents because they were not parties to the case and did not have standing, and that Ex-Husband was attempting to evade his maintenance obligation.  Ex-Husband responded that FC did have jurisdiction because Ex-Wife had not posted supersedeas bond and that FC should set a hearing on the challenge to the garnishment.  After hearing, FC granted Ex-Wife’s motion to terminate the garnishment, noting that no common law judgment has been entered nor had a separate lawsuit been entered by Ex-Husband’s parents; that they could not assign the debt to Ex-Husband to be collected in the dissolution as it appeared to be an attempt to circumvent his maintenance obligation.  Ex-Husband filed a timely appeal of this order.  Subsequently, Ex-Husband’s parents filed a motion to intervene in the divorce proceeding for the limited purpose of setting a payment schedule in order to effectuate Ex-Wife’s payment of her portion of the debt.  FC denied the motion and Ex-Husband timely filed an appeal of that order. 

ANALYSIS:

CA noted that Ex-Husband’s frequent iteration of the phrase “this assignment of error was preserved for appellate review” is insufficient to identify preservation of issues in the record as required by CR 76.12(4)(c)(v), but nonetheless proceeded with review on the merits.

CA disagreed with Ex-Husband’s contention that because the creditor, his father, testified regarding the debt and the debtor, Ex-Wife, had an opportunity to cross-examine the creditor and raise any defenses she may have, his father should not have to obtain a judgment in separate proceeding, and that FC could have joined his father as a party to the case for this purpose under KRS 403.150(6).  CA found the additional parties to be jointed referenced in that statute would not be third-party creditors, but rather parties who may have custody rights to children of the parties.  The proper method for Ex-Husband’s father to collect on the debt is through a common law judgment or through a separate lawsuit.  Regarding his father’s motion to intervene, CA held that denial of the motion was proper as no attempt had been made by Ex-Husband’s father to collect the debt via common law judgment or separate lawsuit. 

Affirmed.

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

Defacto Custodian Case Digest, Spreacker v. Vaughn, el al, Ky Court of Appeals

Spreacker v. Vaughn, et al

No. 2011-CA-002011-ME

Published:   Opinion Affirming  

County:  Greenup

Sandra Spreacker appeals from an order of Greenup Family Court which determined that Denise Vaughn, the paternal Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.

In July, 2010 while baby-sitting B.C., Vaughn noticed severe diaper rash.  She contacted Spreacker who requested that B.C. be returned home the next day.  The next day, however, Spreacker was arrested.  The child’s father was already incarcerated.  Although Vaughn had physical custody, she did not have legal custody, so she filed a petition for juvenile dependency, neglect, and abuse in Boyd County.

On July 7, 2010, Boyd District Court granted emergency custody to Vaughn and granted her custody after a temporary removal hearing on July 12.  On July 27, Vaughn amended her petition to allege B.C. was medically neglected.  After an adjudication hearing on September 14 during which B.C.’s parents admitted to neglect, the court ordered B.C. to remain in Vaughn’s custody.

On January 3, 2011, Vaughn filed a petition for custody in Greenup, her home county.  At a hearing on May 3, 2011, the Greenup Family Court found that Vaughn was a de facto custodian and awarded her custody of B.C.  This appeal followed.

The Greenup Family Court found that B.C. continuously resided with Vaughn who made sure the child received all necessary medical procedures and Vaughn was the primary financial supporter.  B.C. had a Kentucky medical card before custody was awarded to Vaughn and received money from Kinship Care which merely covered daycare expenses.  Spreacker argues that Vaughn was not the primary financial support because of these benefits.  The Court of Appeals disagreed and said the government benefits only supplemented what Vaughn provided and the benefits did not supplant the primary support of the child.

The Court of Appeals distinguished this case from those involving foster parents, who receive support from the Cabinet.  B.C. was never in the custody of the Cabinet and Vaughn is not a foster parent.  KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole” caregiver and financial supporter.

The Court of Appeals found that because the child is under the age of three and was never “placed” by the Cabinet, the statutory criteria was satisfied.  Moreover, the CA held that because Spreacker did not commence a separate action to regain custody, she did not toll the calculation of the statutory time for establishing a de facto custodian.

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

Standing to Pursue Child Custody- Same Sex Couples- Truman v. Lillard digest, Ky Court of Appeals

Truman v. Lillard, 2012-CA-000160-ME

Published:   Affirming   

County:  Fayette

Former life-partner of Child’s adoptive mother appealed from FC’s denial of her motion for joint custody, visitation and to set child support due to lack of standing.       

FACTS:

Truman and Lillard were in a marriage-like relationship for four years prior to Lillard obtaining temporary guardianship of her six-month-old nephew, Thomas.  Truman and Lillard had discussed plans to start a family, but at that time were waiting to do so as they were both full-time students.  However, because Thomas was her nephew and needed a healthy home, Lillard began the adoption process, which was finalized in 2008.  The couple was aware that they could not legally jointly adopt Thomas in Kentucky.  Although Truman assisted in raising Thomas as one of his “Mommies”, no steps were taken to establish parenting rights for her.  In February 2010, the couple broke up and Truman left the Mississippi home she shared with Lillard and Thomas.  After a domestic dispute in which Truman attempted to take Thomas, Lillard moved to Lexington with Thomas, obtained a restraining order against Truman, refused further communications from her,  and refused to allow her to spend any time with Thomas.  Truman filed a petition for joint custody and visitation and volunteered to pay child support.  In October 2010, the parties agreed to a visitation order.  Lillard subsequently relocated again, to Bowling Green, and sought a transfer of the case to Warren FC based on her new address, which was denied.  In November 2010, Fayette FC held a hearing based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer.  FC orally found she had not, though no written orders were entered.  In August 2011, Truman petitioned the court for a status hearing and for written orders on the waiver issue.  FC did so, finding Lillard had not waived her superior right and that Truman had no custodial rights, and denied Truman’s request for visitation and for a new trial.  Truman appealed, arguing that FC erred by:  1.  Failing to transfer the matter to Warren FC; 2.  Failing to make sufficient findings of fact on visitation; 3.  Incorrectly relying on Picklesimer regarding visitation; and 4.  Entering findings of fact not supported by the evidence. 

ANALYSIS:

CA disagreed with all of Truman’s contentions.  First, Truman’s argument regarding transfer to Warren FC was completely inconsistent with her actions in Fayette FC, and CA held she was judicially estopped from challenging FC’s action which was consistent with her requested relief. 

Regarding the sufficiency of findings on visitation, CA held that FC did make findings in this regard and that FC is not required to address every piece of evidence or argument by counsel for findings to be sufficient.  So long as FC’s findings reflect a good faith effort at fact-finding and complies with CR 52.01, the findings will be sufficient.  CA found that FC’s findings did so and were sufficient.

Next, CA addressed whether FC should have relied on Picklesimer on the visitation issue or if it should have applied the in loco parentis doctrine.  CA noted that this reliance was appropriate and that the in loco parentis doctrine has been replaced by the de facto custodian statute; thus, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the legal parent has waived her superior right to custody, or if the parent is unfit. 

Lastly, CA disagreed with Truman’s contention that the findings of fact relative to custody were not supported by the evidence.  CA held, “Although we appreciate the substantial and significant relationship Truman had with Thomas, she was not his parent, she could not qualify as a de facto custodian, and he resided with his only parent, Lillard. … This case serves as an illustration of the exception to Mullins, where we distinguish a non-parent truly acting in the capacity as a parent from the many people who may love, care for and support a child . . . . Not every person who genuinely loves and cares for a child gains custodial rights; waiver requires significantly more. There was no error.

Affirmed.

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

Grandparent Visitation, Palmer v. Brunett digest, Ky Court of Appeals

Palmer v. Burnett, 2011-CA-002097-ME

Issue:  Grandparent visitation

Published:   Affirming   

County:  Jefferson

Maternal Biological Grandmother appealed FC’s order dismissing her motion for grandparent visitation on the basis that she lacked standing.       

FACTS:

In 1990, Michelle voluntarily relinquished her parental rights to Kristen and Michelle’s mother, Kristen’s biological grandmother, adopted Kristen.  In 2004, Kristen gave birth to Alexis.  Despite termination of Michelle’s parental rights to Kristen, Michelle and her husband developed a close relationship with Alexis.  Alexis even resided with them for several months.  However, in 2010, Michelle and her husband obtained DVOs against Kristen on the basis that she threatened to kill them.  Kristen and Alexis’ father then refused to allow Michelle and her husband to have contact with Alexis.  Michelle and her husband initiated a custody action, asserting standing as de facto custodians.  FC dismissed the custody action, finding that Michelle and her husband had not been Alexis’ primary caregivers for at least one year prior to filing the petition as required under KRS 403.270.  Michelle and her husband then filed a grandparent visitation action, which FC also dismissed, finding that due to the termination of Michelle’s parental rights to Kristen, she was not legally Alexis’ grandmother (and her husband, lacking even a biological relationship to Alexis, was also not a legal grandparent.)  However, FC implored CA to overturn its finding regarding standing, finding that a continued relationship with Michelle and her husband was in Alexis’ best interests.  Michelle and her husband appealed, although no argument was presented on husband’s behalf. 

ANALYSIS:

CA noted that termination of parental rights constitutes a permanent severance of the parent-child relationship—it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and the child.  All parental rights are then vested in the adoptive parent.  Thus, Michelle’s termination of her parental rights to Kristen included termination of a future right to a relationship with Alexis, and Kristen and Michelle became sisters for legal purposes, meaning Michelle is legally considered Alexis’ aunt.  As there is no statutory protection for visitation rights of aunts and uncles, Michelle had no standing to pursue visitation of Alexis.

Affirmed.

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

Waiver of Superior Right to Child Custody, Johnson v. Overbee digest, Ky Court of Appeals

Johnson v. Overbee, 2011-CA-002097-ME

Published:   Affirming   

County:  Lee

Biological parents appealed FC’s ruling denying their petition for custody of Child.      

FACTS:

Child of Biological Mother and Father tested positive at birth for multiple illicit drugs, and Cabinet filed and was granted a petition for emergency custody.  After one and a half month removal, Biological Parents regained custody of Child.  Four months later, Biological Mother shot Child in abdomen while attempting to shoot Biological father—Biological Father had held Child in front of his body as a shield and Biological Mother shot anyway.  Cabinet was again granted emergency custody, but this time placed Child with Biological Mother’s Cousin and her husband.  FC ultimately conducted adjudication hearing and granted permanent custody of Child to Cousin and her husband.  Biological Parents were present at the hearing and represented by counsel, and made no objection to the award of custody, nor did they appeal that award.  Almost two years later, Biological Parents filed a petition for custody of Child.  FC issued an Order on that petition almost four years later, in which it determined that Biological Parents had waived their superior right to custody of Child, and that it was in Child’s best interests to remain in custody of Cousin and Husband.  Biological parents filed this appeal.      

ANALYSIS:

CA noted that while biological parents have a superior right to custody of their children, a third party may acquire standing to obtain custody of a child if the biological parent is unfit or if the biological parent waived his or her superior right to custody.  For the waiver to be effective, the biological parent must have intended to voluntarily and indefinitely relinquish custody of the child.  CA found that Biological Parents did just that at the adjudication hearing, and their failure to file an appeal further evidenced that intent, demonstrating by clear and convincing evidence that Biological Parents waived their superior right to custody of Child.  CA noted that there also appeared to be substantial evidence of Biological Parents’ unfitness, but such a finding was rendered moot by the finding regarding waiver.

Affirmed.

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

Termination of Parental Rights, Case Digest, B.M.H. v. CHFS, Ky Court of Appeals

B.M.H. v. Commonwealth of Kentucky, Cabinet for Health and Family Services; et al

No. 2012-CA-000194-ME

Published: Opinion Affirming

County: Jefferson

B.M.H. appeals from Order of Jefferson Circuit Court, Family Division, denying his motion to dismiss its September 22, 2011, judgment terminating his parental rights to I.C.D.

I.C.D. was born to N.D. on August 8, 2010.  Both mother and child tested positive for cocaine metabolite and a report was filed with the Cabinet for Health and Family Services.  The Cabinet obtained an emergency custody order & filed a petition alleging I.C.D. was an abused or neglected child, naming B.M.H. as the father.  The Cabinet was granted temporary custody.  On November 8, 2010, the Cabinet filed a petition for involuntary termination of B.M.H.’s parental rights.  B.M.H. was incarcerated at the time of the hearing and participated telephonically.  The Family Court terminated B.M.H.’s parental rights to I.C.D.  B.M.H. files this appeal.

B.M.H. argues that he should not be included in the action because he is not the putative father.  In an action to terminate parental rights, KRS 625.060 requires the Cabinet and the biological parents, if known, to be parties in the action.  Putative fathers are not necessary parties if exempted by KRS 625.065.  The statute requires a putative father to participate in an action to terminate parental rights only if one of six conditions exist.  If none of the conditions exist, the putative father has no parental rights to the child.

At the hearing, a social worker employed by the Cabinet, testified that the mother identified B.M.H. as the father in an affidavit, but no affidavit was introduced as evidence.  Since B.M.H. did not object to the testimony about the affidavit, any error in its omission was not preserved for review.

B.M.H. is without parental rights to I.C.D. either by the Court’s order or by the effect of KRS 625.060(2).  Since he would have no rights irrespective of the admission of testimony regarding N.D.’s affidavit, the Court of Appeals was unable to say that the alleged error resulted in manifest injustice to B.M.H.  Manifest injustice requires a showing that a different result would have occurred or the error was so fundamental it threatens a party’s right to due process.

The order of Jefferson Circuit Court, Family Division, is affirmed.

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

Putative Father Entitled to Evidentiary Hearing Before Paternity Adjudication, JDC v. CHFS, Digest, Ky Court of Appeals

J.D.C v. CHFS, 2012-CA-000670-ME

Published:   Reversing and Remanding   

County:  Barren

Putative Father appealed FC’s judgment of paternity, claiming he should have been granted evidentiary hearing.    

FACTS:

Mother of Child filed paternity complaint against Putative Father.  Genetic testing confirmed that Putative Father was the biological father of Child, and Putative Father did not contest the validity of this testing.  He continued to contest the finding of paternity and requested an evidentiary hearing, contending that he did not have consensual sexual relations with Child’s Mother but that, while a guest in his and his wife’s home, she had unlawfully obtained his sperm from a used condom after he had sexual relations with his wife and inseminated herself with it.  FC denied Putative Father’s request for evidentiary hearing and entered a judgment of paternity.

ANALYSIS:

Putative Father contended to CA that FC’s refusal to grant him an evidentiary hearing was contrary to KRS Chapter 406.  CA agreed, holding that genetic testing alone is insufficient to establish paternity if the father were to raise a legally sufficient reason as to why paternity should not be entered against him.  Per KRS 406.111, genetic testing of 99% probability of paternity is only a “rebuttable presumption” which may be rebutted by a preponderance of the evidence.  Thus, putative fathers are entitled to an evidentiary hearing to attempt to rebut the presumption. 

CA also held that Putative Father’s argument that he did not engage in consensual sexual relations with Child’s Mother and did not consent to the use of his sperm would trump any public policy arguments requiring fathers to support their out-of-wedlock children or holding a man strictly liable for his sperm if he engages in consensual sexual conduct. 

Reversed and Remanded for an evidentiary hearing.

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

Division of Marital Property, Ford v. Perkins, Digest, Ky Supreme Court

Ford v. Perkins, 2011-SC-000330-DG

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

County:  Jefferson

 SC granted Ex-Husband’s motion for discretionary review regarding the appropriate distribution of his IRA account, which Ex-Husband no longer disputed was marital property.   

 FACTS:

Husband and his employer began contributions to a 401(k) plan in 1992.  Husband and Wife married in December 1998.  Wife spent most of marriage as a homemaker.  Husband’s and his employers’ contributions to the plan continued until January 2001 when Husband resigned; he subsequently rolled the 401(K) over to an IRA.  Husband and Wife separated in November 2007 and divorced in December 2008.  All matters of support and property division were agreed upon except for the division of Husband’s IRA.  At the hearing on this issue, Husband only submitted records of contributions made after the marriage, from August 2000 through January 2001, as both his and his former employers’ other records had been destroyed in a flood.  He submitted no records regarding the value of the account on the date of marriage, but he did submit the values when the 401(k) was rolled over to an IRA, in May 2001.  Husband argued to the trial court that the contributions from records submitted to the trial court should be extrapolated to establish the amount that was contributed during the marriage and that the remainder should be his nonmarital property.  FC found that the entire account was marital as Husband failed to meet the burden of proof as the proponent of a nonmarital property interest.  FC then found that the account should be divided equally between the parties as of the date of decree.  Husband appealed this ruling to CA, which affirmed FC’s finding that the account was marital property; however, CA determined that because Wife presented no proof that she made any direct or indirect contribution to the account, an equal division of the account was not supported by the record; CA remanded to FC with instructions to award Husband 100% of IRA. 

Ex-Wife moved SC for discretionary review, asking 1.  Whether FC’s finding that parties were married when an asset was acquired is sufficient to support equal division of the asset under Gaskill v. Robbins; and 2.  Whether, on appeal, CA may make a different award of the division of marital property without applying KRS 403.190 factors. 

 

ANALYSIS:

1. Whether FC’s finding that parties were married when an asset was acquired is sufficient to support equal division of the asset under Gaskill v. Robbins:

 SC found that this premise boils down to requiring FC’s presumption that both parties to a marriage contribute to assets acquired during the marriage.  SC disagreed.  KRS 403.190 requires FC to consider the contribution of each spouse to acquisition of the asset (including homemaker duties); value of the property set aside to each spouse; duration of the marriage; and economic circumstances of each spouse when the division is to become effective.  SC noted that Gaskill emphasized many intangible contributions to acquisition of an asset that FC must consider in its property division determination, but the language does not purport to create a presumption. 

        2.    Whether, on appeal, CA may make a different award of the division of marital property without applying KRS 403.190 factors:

SC agreed with Ex-Wife, noting that FC committed same error as FC when it failed to consider all factors of KRS 403.190 when it awarded 100% of IRA to Husband.  CA based its decision on evidence of contribution, but did not consider the other three factors.  FC’s findings of fact were insufficient, and CA should have remanded for further proceedings. 

Reversed and Remanded for to FC for additional fact-finding regarding KRS 403.190 factors.

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

Grandparent Visitation, Walker v. Blair, Ky Supreme Court, Digest of Opinion

Walker v.Blair

2012-SC-000004-DGE

Published:  Reversing and Remanding

County:     Jefferson

 In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court recognized the constitutionally protected liberty interest of parents to raise their children without government interference.  The Supreme Court of Kentucky accepted discretionary review of this case to consider interpretation of KRS 405.021(1) consistent with the principles articulated in Troxel.

Appellant, Michelle Walker, and Steve Blair had one child, B.B.  Steve committed suicide and thereafter his mother, Appellee, Donna Blair, filed a petition to establish visitation with five-year-old B.B.  The trial court held an evidentiary hearing in which both parties and Blair’s ex-husband, Martin Blair, B.B.’s paternal grandfather, testified.

Blair testified that she and B.B. had a close, loving relationship.  She was taking three antidepressant medications, but testified that her mental condition is stable.  Walker testified that Blair had infrequent contact with B.B. and that the child had not asked to call or see his grandparents.  Walker said she would follow the recommendation of B.B.’s therapist regarding his contact with Blair.

The trial court found it was in B.B.’s best interest to grant visitation to Blair. Working with B.B.’s therapist, the eventual goal was at least one overnight visit per month and reasonable visitation during holidays.  The trial court denied Walker’s motion to alter, amend or vacate, and on Walker’s appeal, the Court of Appeals affirmed the trial court.

The trial court’s findings are reviewed applying the clearly erroneous standard, but the interpretation of KRS 405.021(1) and the application of the appropriate standard are issues of law to be reviewed de novo.

The Kentucky Supreme Court last addressed this issue in 1992 in King v. King, 829 S.W.2d 630 (Ky. 1992).  KRS 405.021(1) provides that the court may grant reasonable visitation to grandparents if it determines that it is in the child’s best interest, based on a preponderance of the evidence standard.

Eight years later, the Supreme Court of the United States decided Troxel v. Granville, involving a Washington statute which permitted any person to petition for visitation rights if it served the child’s best interest.  The trial court granted visitation to a child’s grandparents, but on appeal, the Washington Supreme Court held that the statute unconstitutionally interfered with parents’ fundamental right to raise their children.  The U.S. Supreme Court affirmed the state supreme court’s decision.  A majority of the court agreed that under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody and control of their children and concurred that there is a presumption that fit parents act in the best interest of their children.

Scott v. Scott, 80 S.W.3d 447 (Ky. App. 2002), overruled by Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), interpreted KRS 405.021(1) in light of Troxel, holding that grandparent visitation could only be granted over the objection of a fit parent if it is shown by clear and convincing evidence that the child would be harmed by deprivation of visitation with the grandparent.

Just two years later, the Court of Appeals, sitting en banc, decided the Scott panel misread Troxel and overturned Scott in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004).  The Vibbert court required grandparents to prove by clear and convincing evidence that the requested visitation is in the best interest of the child and included a list of factors to consider.

Because the King decision effectively placed grandparents and parents on equal footing in determining grandparent visitation rights and did not recognize a presumption in favor of a fit parent’s decision to deny visitation, Troxel overturned King.  KRS 405.020(1), however, is not unconstitutional, and the modified best interest standard established in Vibbert is approved.

The starting point for a trial court’s analysis under KRS 405.021(1) is that a fit parent acts in the child’s best interest.  The grandparent must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest.  Lacking such evidence, parental opposition alone is sufficient to deny grandparent visitation.

The trial court should not attempt to determine whether the parent is fit before presuming the parent is acting in the child’s best interest.  The trial court must presume the parent is fit and turn to the Vibbert factors to decide if the parent is mistaken in the belief that grandparent visitation is not in the child’s best interest.

If a grandparent demonstrates that harm to the child will result from deprivation of visitation with the grandparent, this is strong evidence that the visitation is in the child’s best interest.  The factors in the Vibbert modified best interest analysis must be considered.  A trial court may not override parents’ constitutional liberty interest in rearing their child just because the judge believes a better decision could be made.

The trial court cited Baker v. Perkins, 774 S.W.2d 129 (Ky. App. 1989) for the proposition that parental opposition is not sufficient alone to deny the grandparent visitation, which does not afford a fit parent’s decision the presumption required by Troxel.  To the extent that Baker v. Perkins conflicts with the standard, it is overruled. The trial court’s reliance on King is also erroneous, because after Troxel, King is no longer good law.

The Supreme Court remanded to the trial court for a new evidentiary hearing applying the modified best interest standard consistent with the opinion.

The Court properly denied Appellant’s motion to dismiss because the legislature did not intend to force a grandparent whose child is deceased to choose between seeking noncustodial visitation and pay child support or forfeiting visitation altogether.

The decision of the Court of Appeals is reversed, the trial court’s visitation order is vacated, and this case is remanded to the trial court with directions to conduct a new evidentiary hearing applying legal standards consistent with this opinion.

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

 

Soileau v. Bowman, Ky Court of Appeals, CR60.02, Personal Jurisdiction

Soileau v. Bowman, 2011-CA-001230-ME

Issue:  Rule 60.02 motion, personal jurisdiction

Published:   Reversing and Remanding   

County:  Anderson

Father appealed FC’s order denying his CR 60.02 motion to set aside prior orders and judgments for lack of personal jurisdiction.    

FACTS:

Mother and Father resided in Texas with their minor Child prior to separation.  After separation, Mother moved to Kentucky with Child and commenced divorce action.  Mother was unsuccessful in serving Father and warning order attorney was appointed to constructively serve him.  FC issued temporary order requiring Father to pay child support or $1,096 monthly.  Father subsequently made some payments of child support in amounts of $100-$300.  FC then issue final decree with child support at $1,096 per month.  County attorney’s office intervened for judgment on the arrearage, and FC entered a arrearage judgment against Father for $6,815.  Case was later transferred to Anderson FC, and a flagrant non-support arrest warrant issued, with arrearage amounting to nearly $50,000.  Years later, Father moved FC to set aside all previous orders pursuant to CR 60.02 on the basis that each was void for lack of personal jurisdiction, which FC denied.  Father appealed. 

ANALYSIS:

FC denied Father’s motion on the basis that it was not filed within a reasonable amount of time.  CA noted that void judgments are legal nullities that must be set aside regardless of when made.  Absent an appearance by the party, constructive service alone is not sufficient to subject nonresidents to a personal judgment by a court of this state.  Thus, because warning order service is only constructive, FC had no personal jurisdiction over Father.  Commonwealth asserted that under KRS 454.210, Kentucky’s long arm statute, and KRS 407.520, Kentucky’s UIFSA’s long arm statute, FC had personal jurisdiction over Father because he made child support payments, because Child resided in Kentucky per Father’s directive, and because Father’s attorney made a phone call on Father’s behalf to Commonwealth’s office.  CA noted that neither of those steps did not “constitute steps taken which are beneficial to him or detrimental to [Mother]”, nor had Father taken any other steps that would place him within the purview of the long-arm statutes.  As FC had no personal jurisdiction over Father, the orders issued affecting him are void. 

Reversed and Remanded.

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

Stephen Stinson v. Tracy Stinson, Ky Court of Appeals, Contempt When Domestic Violence Order Not Served

Stephen Stinson v. Tracy Stinson

No. 2011-CA-001312-MR

Published:  Opinion reversing

County:     Barren

Stephen Stinson appeals from an order of Barren Family Court holding him in contempt of an amended domestic violence order for violating the no contact or communication provision.

A decree dissolving the parties’ marriage was entered in November, 2009.  In September, 2009, Tracy sought a DVO because Stephen’s telephone calls, text messages, and other threats caused her to fear for her safety and that of her children.  The court entered an emergency protection order and scheduled a hearing the next month.

After the hearing on October 5, 2009, a DVO forbidding Stephen from having any contact with Tracy was entered, to be effective until October 5, 2012.  Stephen was also required to complete domestic violence counseling and an alcohol and drug education program and to provide the court with certificates of completion by July 1, 2012.  He did not file the certificates of completion.

Pursuant to the order entered October 5, 2009, the court reviewed the matter on August 17, 2010 with neither party appearing in court. Stephen was held in contempt for failure to comply with the terms of the DVO and he was sentenced to ten days in jail, suspended on condition that he file the certificates by April 1, 2011.  The matter was set for review on May 10, 2011.  In a separate order, the court entered an amended DVO providing for the new date for completion of the programs and extending the amended DVO until October 5, 2012.  Two attempts to serve Stephen were returned as undeliverable.

On February 25, 2011 Tracy filed a domestic violence show cause order after she received a threatening letter from Stephen.  Both parties appeared, without counsel, on March 18, 2011.  The court allowed Stephen to file an affidavit of indigency and subsequently appointed the DPA to represent him.

At the rescheduled show cause hearing held June 24, 2011, Stephen argued that since he had not been served with the amended DVO, he could not be held in contempt for violating its terms, and that the allegedly contemptuous behavior occurred after expiration of the original DVO.  After hearing testimony from the parties, the court found Stephen in contempt.  He was sentenced to ten days in jail, suspended on the condition that he purge himself of contempt by complying with the amended DVO.  This appeal followed.

Stephen contests entry of the original DVO pursuant to the palpable error rule of RCR 10.26, arguing that Tracy failed to establish that domestic violence had occurred or was likely to occur in the future.  The Court of Appeals held that Stephen’s failure to file a timely appeal from the original DVO precluded him from contesting the original DVO in this appeal.

Stephen further argued that he could not be held in contempt for failing to comply with the amended DVO because he was never served.  Notice and service requirements apply to all orders of protection issued pursuant to KRS 403.715 and KRS 403.785.  Until an individual has been served with an amended DVO or notified of its existence and terms, there can be no finding of a violation of its terms.  Therefore, the June 24, 2011 contempt order was improperly entered and must be reversed.

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

 

B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al, Ky Court of Appeals, Sibling Visitation Following Adoption

B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al

No. 2011-CA-000333-ME

Published: Opinion Reversing and Remanding

County: Jefferson

Appellants appeal from the Jefferson Circuit Court’s denial of a CR 60.02 motion to set aside an order in an adoption case requiring visitation between adopted children and their biological siblings.

In 2007, A.M., L.M., and L.S.M. were placed in Appellants’ foster care by the Cabinet for Health and Family Services.  Parental rights to the children had been terminated by judgments entered earlier that year.  The children have three older biological siblings who were not placed with Appellants.

In January, 2009, Appellants filed petitions for adoption of all three children.  At a hearing, the GAL and the family court opined that the adoption was in the best interest of the children so long as Appellants agreed to reasonable visitation with their biological siblings.  The family court granted the adoption petitions and entered into the record a statement from Appellants agreeing to siblings visitation after the adoption and a notation that violation is punishable by contempt.

 In June, 2010, the GAL filed a motion to hold Appellants in contempt for violating the sibling visitation order.  When family court scheduled a contempt hearing, Appellants filed a CR 60.02 motion to set aside the visitation order arguing that family court exceeded its jurisdiction in entering and attempting to enforce the order.  When family court passed the motion to the contempt hearing, Appellants filed a petition for a writ of prohibition and a motion for emergency relief in the Court of Appeals.  Both were denied on the basis that extraordinary relief was not required because the parties had a remedy by appeal from the contempt hearing.  No ruling was made concerning the validity of the visitation agreement.  When the family court denied Appellants’ CR 60.02 motion, this appeal followed.

KRS 405.021 provides that grandparent visitation, if already established by court order, could be enforced even after the termination of parental rights.  Our legislature has not provided for visitation by family members except grandparents following such termination.

In this case, once the judgment of adoptions was entered, there were no legal ties between A.M., L.M., and L.S.M. and their biological siblings.  The Appellants, as the adoptive parents, could have allowed sibling visitation but to judicially require such visitation in the absence of any statutory authority contravenes the legislative intent and Kentucky law.

Therefore, Jefferson Family Court lacked authority to order sibling visitation and Appellants were entitled to CR 60.02 relief.  The Order was vacated and remanded to family court for any additional action required.

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

Wethington v. Coffey, Ky COA, Standing to Pursue Child Custody

Wethington v. Coffey, 2011-CA-000555-ME

Published:   Vacating and Remanding   

County:  Green

Father appealed FC’s order awarding joint custody of his children along with the children’s deceased mother’s nephew and wife, contending that deceased mother’s nephew and wife did not have standing to pursue custody. 

FACTS:

Father and Mother shared joint custody of twins after divorce, with Mother providing twins’ primary residence and Father receiving standard visitation schedule.  Three years’ later, Father’s visitation was suspended following a social services investigation alleging he had abused his minor daughter (the twins’ half-sister).  Father later received visitation once again, but for minimal periods of time.  However, he consistently failed to exercise the time he was given and had very little involvement in the twins’ lives over the next six years while Mother was still alive.  Meanwhile, Mother’s nephew, his wife and their children, who were approximately the same age as the twins, spent substantial amounts of time with them during the same time period. 

The day that Mother died, Nephew and Wife filed petition for emergency custody, indicating in the Petition that Father’s whereabouts were not known.  FC granted them emergency custody and two days later, they were granted temporary custody after a temporary removal hearing.  They filed for permanent custody a few weeks later.  After another temporary custody hearing a few months later, the parties agreed that Father would have visitation with children 4 days a week for the next 2 months.  Father again neglected to exercise his visitation.  FC drastically limited visitation again but Father still did not exercise all time that was allotted to him.  After final hearing, FC found Nephew and Wife had standing pursuant to KRS 403.822(1)(b)1 and KRS 403.800(13); that Father should not have custody because he had inflicted emotional harm on the twins, exhibited moral delinquency, and had abandoned the twins; and that Nephew and Wife should share joint custody with Father but Nephew and Wife would provide primary residence for twins with Father receiving the same drastically limited visitation.  Father appealed.

ANALYSIS:

CA agreed with Father that Nephew and Wife did not have standing to pursue custody action.  While CA agreed that KRS 403.822 was appropriately relied upon by FC in its analysis of standing in this case, FC misinterpreted and misapplied KRS 403.800(13), which defines “a person acting as a parent” who might have standing under KRS 403.822.  Such a person must have legal custody or claim a right to legal custody AND have or have had physical custody of the child for six months of the year preceding the custody action.  Here, Nephew and Wife had custody for less than a month prior to filing their petition.  CA disagreed with Nephew and Wife’s interpretation that the six month limitation should only be imposed on parties who no longer have physical custody, and thus did not apply to them as the custodians at the time of filing.  CA, on a matter of first impression, found that the six month requirement applies to any party seeking custody, regardless of the current physical custody status.  Thus, Nephew and Wife did not have standing to pursue custody of twins.

Vacated and Remanded.

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

Hempel v. Hempel, Ky COA, Parenting Time, Imputed Income, Property Division

Hempel v. Hempel, 2011-CA-000763-MR

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

County:  Oldham

Ex-Husband appealed FC’s order, contending that FC erred by imputing income to him for child support purposes, by arbitrarily reducing his parenting time, and by making an unequal division of the marital estate. 

Parenting Time:

CA agreed with Ex-Husband that there was no substantial evidence to support FC’s finding that he had not regularly exercised the parenting time allotted to him before trial, and that evidence clearly showed that he saw children on an almost daily basis.  CA held that FC clearly erred on this issue and remanded for further consideration of the issue.

Child Support:

CA agreed with Ex-Husband that as there was no evidence introduced to show the strength or nature of prevailing job opportunities or the expected earnings levels in the community, and as FC gave no explanation as to how it determined that Ex-Husband could be expected to earn at the same level as Ex-Wife, there were inadequate findings for CA to conduct meaningful review of the decision and the issue was remanded to FC for further findings. 

Division of Marital Estate:

CA did not agree with Ex-Husband that FC erred by not giving him equal share of marital estate.  CA found no evidence that FC considered any factors other than statutory criteria and that FC did not abuse its discretion in the division. 

UGMA accounts:

CA did not agree with Ex-Husband that FC erred by failing to permit him to oversee the Uniform Gifts to Minors Act accounts of the children.  CA noted that under statutory provisions, Ex-Wife as monitor of the accounts must keep records available for inspection and that Ex-Husband was permitted to inspect the account. 

Affirmed in Part, Vacated in Part, and Remanded.

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

J.M., Father v. A.D., Mother, Ky COA, Child Support, Evidence of Payment

J.M., Father v. A.D., Mother

No. 2012-CA-000358-ME

Published: Opinion Vacating and Remanding

County: Jefferson

J.M. (Father) appeals from Jefferson Family Court order granting A.D.’s (Mother) petition to alter or amend a previous order.

The parties were never married, but they had a child born in 2009.  Soon after the child was born, the Mother and child relocated to Virginia.  In April, 2010, a Virginia court granted the parties joint custody, with mother receiving primary physical custody and Father receiving regular visitation.  In June, 2010, Mother filed a petition for child support in Virginia, which was transferred to Jefferson Family Court.  In November, 2010, Jefferson Family Court entered an order setting child support at $521 per month, reserving the issue of arrearages.  Mother filed petition to amend child support order to include child care costs and arrearages.

In March, 2011 Mother served interrogatories and requests for documents, to which Father failed to respond.  Mother filed a motion to compel production of the documents and a motion for a hearing to determine arrearages.  At the time of the hearing, Father had not produced any of the requested discovery.

During the hearing in June, 2011, Father testified that he had sent Mother approximately $6300 in child support prior to incurring any court-ordered obligation.  Mother testified that she thought Father had sent approximately $1800 during a six-month period.  Father had no documentation at the hearing and the court gave him 14 days to submit copies of checks written to Mother.  Father submitted photocopies of check carbons from his checkbook.

In August, 2011, the court entered an order finding Father had failed to produce sufficient evidence of support payments to Mother, but failed to make a determination of arrearage owed.  In response to Mother’s petition to alter or amend the order to include arrearages, Father filed photocopies of canceled checks demonstrating that Mother had cashed checks totaling $6491.00.

The court entered an amended order finding that Father’s evidence was improperly submitted and found arrearages to be $7,580.00.  Father appealed from that order, arguing that because the trial court erred when it did not consider his proffered evidence of payments, its calculation of arrearages was erroneous.

Kentucky RCP 52.01 provides that in actions without juries, the trial court’s findings of fact should not be reversed unless clearly erroneous, which occurs only when there is not substantial evidence in the record to support the trial court’s findings.

The Court of Appeals found that a carbon copy of a check does not prove Mother received or cashed the check.  Father argues however, that he did file correct documents with his reply to Mother’s motion to alter and amend the judgment.  The trial court erred by not considering the copies of the cancelled checks, Mother having opened the door by filing the CR 59.05 motion.

Neither party had clean hands; Father was recalcitrant in producing checks and Mother misrepresented the amounts of payments she received.  In order to avoid manifest injustice, 1the matter was vacated and remanded to the trial court for hearing on the relevance of the checks and entry of an appropriate order.

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

Guenther v. Guenther, Ky COA, Domestic Violence Order

Guenther v. Guenther, 2011-CA-001165-ME, (link to .pdf within minutes is broken)

Issue:  Jurisdiction to enter DVO, error in entry of DVO

Published:   Reversing and Remanding   

County:  Kenton

Ex-husband contested entry of DVO, contending FC was without jurisdiction to enter it, as DVO hearing was continued to more than 14 days after filing of EPO (though by agreement of parties) and that FC had insufficient factual basis to establish that domestic violence had occurred and may occur again.

FACTS:

Divorced but reconciled couple had an altercation in which Ex-Wife claimed that Ex-Husband grabbed her wrist and threw her to ground.  FC entered EPO and hearing was scheduled nine days later.  At the scheduled hearing, both parties and their counsel were present but asked the judge to continue the hearing as they were attempting to reach an agreement on the DVO, with the possibility of DVO dismissal.  DVO hearing was continued for 2 weeks.  At the hearing, Ex-Wife testified that she heard her back “pop” when Ex-Husband threw her to ground and that she suffered substantial pain though she did not seek immediate medical treatment.  In response to her counsel’s questions as to whether Ex-Husband had been verbally abusive to her and if she was afraid a similar physical altercation might happen again in the future, she replied “yes” with no elaboration.  Ex-Husband testified that he did not throw Ex-Wife to the ground but that she lost her balance and fell.  FC nonetheless entered DVO, finding that domestic violence had occurred and may occur again.  Ex-Husband then filed this appeal. 

ANALYSIS:

FC had jurisdiction to enter DVO

Ex-Husband argued that KRS 403.740 imposes a strict fourteen-day window during which FC must conduct EPO hearing or lose its jurisdiction to enter a DVO thereafter. Prior to its 2010 amendment, the first sentence of KRS 403.740 provided that “an emergency protective order issued in accordance with this section shall be effective for a period of time fixed in the order, but not to exceed fourteen (14) days.” As amended, the statute now reads, “An emergency protective order issued in accordance with this section shall be effective until the full hearing provided for in this subsection or in KRS 403.745, or until withdrawn by the court.” The legislature specifically deleted the language that limited the effectiveness of an EPO based on a petition to fourteen days and, in its stead, amended the statute to specifically allow an EPO to be effective until a hearing or withdrawn by the court.  The statute continues on to state that a date and time for a full hearing shall be set within fourteen days, but does not state that the hearing must be conducted and not continued. And, if the hearing is continued, then the effectiveness of the EPO can be continued until the next anticipated hearing which shall be set within fourteen days of the date from which it was continued. If the legislative intent had been for the court to conduct such a hearing and not give the court discretion to continue the hearing beyond the aforementioned fourteen days, it would not have included the language or until withdrawn by the court.  Further, the ability to continue the hearing may benefit the parties.  Just as a timely hearing envisioned by the statute allows the parties to protect their rights, so does a continuance of the hearing by their mutual agreement allow the parties to have some control over their case.   Certainly any continuance of the hearing should be in the sound discretion of the court, mindful of the purposes of the statue, and for good cause. CA held that KRS 403.740 does not prohibit a court from granting a continuance of the fourteen-day hearing on a petition for an EPO/DVO.

FC had insufficient factual basis to enter DVO

In order to issue a DVO, the petitioner must show that by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur.  CA found that Ex-Wife’s “monosyllabic responses to her attorney’s leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties is insufficient to base a finding that domestic violence may occur again;” thus, entry of a DVO based on the evidence presented exceeded the discretion of the court. CA remanded to FC for it to vacate the DVO and, if appropriate, enter an EPO.

Reversed and remanded.

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

No Published Family Law Opinions from Ky Supreme Court Today, But...

Take a look at Griffin v. Rice and the spirited dissents regarding whether an adulterous spouse can inherit from her husband's estate. 

S.S. v. Commonwealth, Ky COA, Standing as De Facto Custodian

S.S. v. Commonwealth, 2011-CA-001790-ME

Published:   Affirming  

County:  Jefferson

Child, through GAL, appealed FC ruling that her Great-Grandmother had standing to intervene in suit as de facto custodian, arguing that she did not meet the requirements for de facto custodian status under KRS 403.270.

FACTS:

At age 2, Child was removed from Mother and placed in temporary custody of Great-Grandmother pursuant to dependency petition.  Two years and five months later, Child was returned to Mother’s care; but eight months after that, Child was removed from Mother’s care again and placed in concurrent planning foster home.  Great-Grandmother filed motion to intervene in order to be considered for Child’s placement or to have visitation with Child.  After hearing, FC granted Great-Grandmother de facto custodian status and granted her visitation.  GAL filed motion to reconsider, arguing that Great-Grandmother had relied upon an unpublished case to establish that the lapse in time of her care of Child did not disqualify her as de facto custodian and further arguing that Great-Grandmother could not rely on her husband’s salary as her own income for purposes of meeting the statute.  FC disagreed on both fronts and denied the motion to reconsider.  On appeal, Child through GAL argues that Great-Grandmother cannot qualify as de facto custodian because she is not Child’s primary financial supporter; Child also argues that termination proceedings are scheduled and the standing order of visitation will inhibit Child’s potential for adoption.

ANALYSIS:

There is no authority holding that a de facto custodian cannot be credited with financial support which is provided by the government through government benefits, such as Great-Grandmother’s receipt of social security and social security insurance, or from their spouse’s income, merely because such monies were not earned directly through employment.  Such a result would disqualify stay-at-home spouses, retirees, elderly social security recipients, and poor and disabled recipients of government benefits.  CA held this was not the intent of the legislature.  CA acknowledged and sympathized with the fact that Great-Grandmother’s visitation order, which would continue on past an adoption, might inhibit Child’s prospects for adoption; but without a legal precedent warranting reversal, it has no bearing on Great-Grandmother’s status as de facto custodian. 

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

Samson v. Samson, Ky COA, Child Relocation

Samson v. Samson, 2011-CA-002181-ME

Published:   Affirming  

County:  Fayette

Father appeals order granting Mother leave to relocate with Child to Washington State, contending such an Order is not in Child’s best interests.

FACTS:

After marrying in Texas in May 2009, Couple moved to Kentucky and had their only Child there.  Both Mother and Father have substance abuse issues and bipolar disorder.  Multiple EPO’s were taken out, 2 with Dad as Petitioner and 1 with Mom as Petitioner.  In May 2011, Father’s time-sharing with Child was terminated due to positive drug test, but it was re-established in September 2011.  In November 2011, they divorced and Mother was granted sole custody of Child.  FC ordered a time-sharing evaluation from social worker and the report was incorporated with FC’s order allowing Mother to relocate with Child. 

ANALYSIS:

Father argued that social worker’s opinions must be limited because they cannot be related to psychological analysis or credibility of the witnesses and that she acted only as a conduit for the introduction of hearsay testimony.  CA held first that the social worker was qualified to give the testimony she did, but that, more importantly, her opinion was only a fraction of the evidence relied upon by FC in granting the relocation request.  FC relied upon the testimony of family and friends that, among other things, Mother has no connections to Fayette County; that during their time together, Mother and Father moved repeatedly and there was no real connection to Fayette County for Father either; that neither party has an income; and that both parties have ongoing mental and emotional health issues.  CA also held that these facts demonstrated it was in Child’s best interests to relocate with Mother. 

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

Telek v. Daugherty, Ky COA, DVO - sufficiency of evidence

Telek v. Daugherty, 2009-CA-001993-ME

Published:   Reversing and Remanding  

County:  Kenton

On remand from Kentucky Supreme Court, Father challenges sufficiency of evidence supporting FC’s entry of Domestic Violence Order.

FACTS:

Mother and Father have a son born in 1997.  An incident occurred in 2009 when Mother attempted to pick up Son from football practice.  Mother subsequently filed an EPO, alleging that at that practice she and Father got into a dispute as to when Mother was to retrieve Son; that as Mother was standing at passenger side door of Father’s van telling Son to come with her, Father grabbed her by wrist and yanked her, then shoved her out of the way; that she then called for help; that Father had been sentenced to jail time for violating multiple court orders in custody case; and that all three of her children witnessed the incident.  EPO was granted.  At the DVO hearing, Mother testified to all these facts and that although she had not been injured, she was afraid.  Father testified that he never grabbed or shoved Mother, but that she grabbed his hand from the door of the van; he also stated that he only wanted to take his Son to his home to retrieve a change of clothes and his summer reading assignment for the first day of school the following day; and that he never had any intent to harm or scare Mother.  The GAL testified that Son stated nothing had happened that day. 

At the conclusion of the hearing, FC determined only that “something happened” and recognized Father’s failure to follow FC orders and to read FC orders in his favor.  Upon Father’s request for specific findings, FC found that Father had touched and pushed Mother and that such behavior would continue in the future.  FC entered DVO, effective for three years, requiring Father to stay 500 feet away from Mother and her family other than for child exchanges or for Child’s events related to sports and school. 

ANALYSIS:

On remand from Supreme Court, Father argues that there were insufficient facts to support entry of DVO.  CA agreed, in light of previous precedents establishing that “unwanted touching,” standing alone, is insufficient evidence for entry of a DVO.  CA also found FC erred by basing its decision on Father’s actions in domestic case, holding that this bad behavior was not connected to the incident of domestic violence and therefore cannot form the basis for entry of the DVO. 

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

Williams v. Frymire, Ky COA, Modification of Custody, Jurisdiction

Linda Williams v. David Frymire

No. 2011-CA-001568-ME

Published: Opinion Affirming

County: Calloway

Linda Williams has appealed from judgment of Calloway Family Court modifying custody of the parties’ minor daughter, Jessica Frymire, from sole to joint and naming Linda’s former husband and Jessica’s father, David Frymire, as the primary residential parent.  Linda contends the court did not have jurisdiction to consider David’s motion to modify, and if the forum was appropriate, abused its discretion in modifying the primary residential parent.

The parties were married twice; first from 1992 to 1996 and a second marriage which occurred in 2000.  Jessica was born in 2005.  In 2006 Linda filed a petition in Fayette County to dissolve the marriage.  David failed to appear at the final hearing regarding custody of Jessica and Linda was awarded sole custody and child support.  The final decree was entered in January, 2007.  When Linda moved to Woodford County in November, 2007, she moved to transfer the matter to Woodford County.  In July, 2010, she moved to change the venue again, this time to Calloway County.  Linda and Jessica moved to Missouri, but David remained in Calloway County.

In January, 2011, David filed a motion in Calloway Family Court requesting modification of custody or timesharing, for modification of child support, and restricted visitation.  The basis for David’s motion was an email from Linda announcing that five-year-old Jessica was transgender and would from that time on be considered a boy, wear boy’s clothing, and be called Bridge.  Linda would not listen to any challenge regarding this decision.  David’s motion notified the court that Linda had previously raised unfounded concerns about Jessica’s vision, hearing, and speech and her suspicions that Jessica had Asperger’s Syndrome.  David requested appointment of a child psychologist and a custodial evaluation, which the court granted.

The trial court concluded that Kentucky retained exclusive and continuing jurisdiction pursuant to statute because David was a Kentucky resident and that Kentucky was not an inconvenient forum.  A modification hearing was held on August 3 and 4, 2011.

David testified that Linda has bipolar disorder and her belief that Jessica is transgender developed after she viewed a television special on the topic.  David’s sister, Betsy Porter, and his mother, Phyllis Frymire, both testified that Jessica played like a girl, but conceded that she was not a “frilly” girl.  David’s father and his girlfriend both testified that they did not believe there was a gender issue.

Dr. Sarah Shelton, a clinical psychologist appointed by the court to perform a forensic custodial evaluation of parents and child, found no support for the diagnosis of gender identity disorder, and that Jessica should be treated with gender neutrality.  She recommended a change in custody.  Dr. Dale Owens, a child clinical psychologist, performed an independent evaluation of Jessica’s medical records and found that only Dr. Shelton’s reports were objective and thorough.

Dr. Patricia Berne, Jessica’s treating psychologist, recommended affirming Jessica’s gender choice.  She admitted she did not perform any psychological tests and was confident in diagnosing gender identity disorder, because in her opinion, gender is innate.  Dr. Robin Park, a psychologist, testified at the request of the court.  After meeting with Linda, Dr. Park was concerned about possible sexual abuse and referred Linda to Holly Carson to evaluate possible abuse.  Linda began cancelling appointments with Dr. Park who then made a hotline call to report suspected sexual abuse and neglect.

Trina Jansen, a licensed counselor and Jessica’s art therapist, testified that she diagnosed Jessica with gender identity disorder after the first visit.  Lacking experience with this disorder, she referred Linda to Dr. Berne.  After internet research and reading books, she felt qualified to write an opinion letter recommending affirmation of Jessica’s gender identity as a boy.

Linda testified about her difficulty dealing with the diagnosis of gender identity disorder and trying to follow the recommendations of the medical providers.

Linda asked Dr. Dean Rosen, a licensed clinical psychologist, for a second opinion.  He concurred in the finding of gender identity disorder, but admitted he did not contact David or any of his family members for input.  Clay Williams, Linda’s father, testified that Linda was following the providers’ recommendations.  Rhonda Diaz, who works at a childcare center in Calloway County that Jessica once attended, was called by David on rebuttal.

At the closing of the hearing, David requested sole custody, with visitation for Linda.  Linda requested joint custody with her being named as primary residential custodian.  The GAL also recommended joint custody with Linda remaining as the primary residential custodian.

In August, 2011 the court issued its findings of fact, conclusion, and judgment, holding that it was in Jessica’s best interest to modify custody from sole to joint with David designated as the residential parent and visitation to Linda.  The court did not dismiss the possibility that Jessica has or may have gender identity disorder but noted that girls can prefer male sports, toys, and clothes without being pathologized, requiring intervention.  Linda was also ordered to pay child support.  Linda then filed this appeal.

The Court of Appeals ruled that there were significant connections to Kentucky and substantial evidence in Kentucky for Kentucky to retain exclusive jurisdiction, after reviewing the factors in KRS 403.834(2), the Court of Appeals held that the trial court did not abuse its discretion in retaining jurisdiction.

The Court of Appeals also agreed that the family court’s decision to name David as the residential parent was not an abuse of discretion based on the evidence presented.  The Court made no judgment about the diagnosis of gender identity disorder, but noted that medical witnesses Linda presented did nothing to establish that Jessica was properly diagnosed or that Linda was receiving or following competent medical advice.  The Court stated that Linda’s behavior provided sufficient support for the decision that it would be in Jessica’s best interest to name David as the residential parent and no abuse of discretion was perceived.

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

 

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

Lee v. George

2011-SC-000265-MR

Published:   Affirming  

County:  Jefferson

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

FACTS:

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

ANALYSIS:

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

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

First class of writs:

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

Second class of writs:

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

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

Affirmed.

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

Nosarzewski v. Nosarewski, Ky COA, Child Support Reimbursement for Child Care Expense Not Incurred

Nosarzewski v. Nosarzewski

No. 2011-CA-002148-ME

Published: Opinion Affirming

County: Fayette

Mother appeals from a judgment awarding $10,828.61 to Father for overpayment of child care expenses.

In 1999, a child support order established father’s obligation at $453.00 per month, which included $270.56 in child care expenses.  In 2003, father sought a reduction in child support but was advised by the County Attorney he did not meet the requirements for modification.

In June, 2011 father filed a motion for reimbursement of child care expenses and modification of child support.  He sought reimbursement of $18,366.59 for child care expenses which were never incurred.  Mother appealed father’s motion, arguing that he had unreasonably delayed requesting a reduction of child care expenses.

Following a hearing, the court concluded father was entitled to reimbursement of $10,828.61 for the overpayment of child care expenses.  Mother filed a motion to set aside the order, asserting that the doctrine of laches barred father’s claim.  Mother’s motion was denied and the parties executed an agreed order providing father a credit of $200.00 against his monthly child support obligation to satisfy the judgment.  This appeal followed.

Mother contends the trial court erred by concluding that the doctrine of laches did not bar father’s claim.  After a hearing, Mother’s counsel conceded laches had not been established because neither party was aware that a decrease in child care expenses warranted modification of support.

Father testified that he was advised by the County Attorney in 2003 that he was not eligible for reduction, and both parties testified they did not understand how child care expenses factored into the calculation of child support.  The Court concluded the trial court did not abuse its discretion by rejecting mother’s laches defense.

Mother argued that according to Clay v. Clay, 707 S.W.2d 352 (Ky. App. 1986), an overpayment of child support cannot be recouped unless there exists an accumulation of benefits not consumed for support. The Court of Appeals held, however, that Olson v. Olson, 108 S.W.3d 650 (Ky. App. 2003) controls the outcome of this case.  Olson held that the modification of child care expenses is appropriate when warranted by the facts, regardless of whether there is a 15% material change in circumstances.

The trial court considered all the facts including mother’s evidence to mitigate the amount father sought to recoup and the parties’ agreement which minimized the detrimental effect on the child by providing credit against father’s child support obligation.  The trial court’s judgment was supported by sound legal principles and there was no abuse of discretion, thus the judgment was affirmed.

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

Ball v. Tatum, Ky COA, De Facto Custodians

Ball v. Tatum

No. 2011-CA-001716-ME

Published: Opinion Affirming

County: Daviess

Jessica Ball appeals from an Order entered by the Daviess Circuit Court designating her adoptive parents, Henrietta and Fred Tatum, de facto custodian of E.N.K., her special needs daughter.  The court awarded Ball and the Tatums joint custody of the four-year-old child who was born premature and suffers from cerebral palsy, epileptic seizures, and asthma, and is unable to walk or talk.  Bell maintains the Tatums did not qualify as de facto custodians because they had not been the child’s exclusive caregivers and financial supporters for one year as required by KRS 403.270.

Ball is the adopted adult daughter of the Tatums, who are also her biological grandparents.  There is no allegation that Ball is an unfit mother or that she waived her superior right to custody of her daughter.

 In November, 2010, E.N.K. had a seizure while with Ball and the Tatums feared it was caused by Ball’s failure to administer E.N.K.’s medication as prescribed.  They petitioned the court to name them de facto custodians of E.N.K. and place the child in their care.  After a hearing on the motion for temporary custody, the court granted the motion, reserving the issue of whether the Tatums qualified as de facto custodians.

Hearings by the court and the commissioner showed instability in Ball’s life.  She has lived in ten locations since E.N.K. was born, she has two children by different fathers and currently expecting a third child by another man.  She does not work regularly, yells and curses at E.N.K., and smokes in the child’s presence aggravating the child’s condition.  She misses many of the three weekly physical therapy appointments essential to the child’s progress because of late nights and drinking.  She squandered $6000 in back social security benefits paid to the child, and did not share any of the $570 monthly benefits with the Tatums.

The Tatums are retired, have been married 46 years, have been residents of Kentucky since 1982 and lived in their current home for eleven years.  The Tatums provided Ball with a vehicle and rent-free living space for Ball and her children and according to Fred were their granddaughter’s primary caregivers and financial supporters from E.K.N’s birth in 2006 until summer of 2010.

The commissioner determined that the Tatums qualified as de facto custodian and recommended naming them as E.N.K.’s primary residential custodians, allowing Ball to have parenting time.  At a hearing on Ball’s exceptions to the commissioner’s report, the court ruled from the bench that it was adopting the commissioner’s recommendation in full, denying Ball’s exceptions, and finding that Ball had failed to provide for E.N.K.’s essential needs for reasons other than poverty.  The court did not find Ball unfit, but rather that she was not suitable to care for the child at the present time.  The Tatums were ordered to pay one-half E.N.K.’s social security benefits to Ball, which was amended after the social security office advised that sharing benefits with Ball could jeopardize future payments.

This appeal challenged whether the Tatums qualified as de facto custodians and if so whether it was in the child’s best interest to be placed in their joint custody with Ball.

The Court of Appeals stated that the statute does not require a de facto custodian to prove he is the child’s sole or exclusive provider, but rather he must prove he is the child’s primary caregiver and primary financial supporter.  After reviewing the evidence, the Court of Appeals concluded that the Tatums designation as de facto custodians was not clear error and would not be disturbed.

With respect to the award of joint custody, the Court of Appeals found that the trial court had considered all the relevant factors and found no clear error or abuse of discretion in the decision to award joint custody to Ball and the Tatums.

For these reasons, the amended order of the Daviess Circuit Court entered on August 11, 2001 is affirmed.

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

 

Miller v. Norris, Ky COA, Grandparent Visitation

Miller v. Norris

No. 2011-CA-001285-ME

Published: Opinion Affirming

County: Jefferson

Janet Miller appeals from Order of Jefferson Family Court granting summary judgment and dismissing her action seeking grandparent visitation.

In 2007, the Commonwealth removed two children from the custody of their biological parents and instituted a termination of parental rights action.  After the parents’ rights were terminated, the children were placed in foster care with Appellees Roxanne and Donald Norris, who adopted them in December, 2008.

The Norrises initially permitted Appellant, Janet Miller, the biological maternal grandmother of the children, to visit the children every Saturday with the understanding the children would have no contact with the biological mother.  After a visit with Appellant in February, 2010, the oldest child reported a telephone conversation with a woman during the visit.  The Norrises determined that it was in the children’s best interest to stop the visits with Miller to avoid contact by the children with the biological mother.

Miller testified that she had previously abandoned the idea of a grandparent visitation proceeding because the Norrises assured her they would never keep her from seeing the children.  Mr. Norris testified that although visits with Miller were allowed, she was never told that her access to the children was unconditional.

In August 2010, Miller filed a Petition for Grandparent Visitation.  The Norrises filed an answer and moved to dismiss under CR 12.02 alleging the complaint failed to state a claim upon which relief could be granted.  The Court utilized CR 56 and treated the motion as one seeking summary judgment and in June, 2011 it entered an Order Granting Summary Judgment and Dismissing the Action in favor of the Norrises.  The Court determined that termination of the biological mother’s parental rights also terminated Miller’s statutory right to seek grandparent visitation.  The Court ruled that KRS Chapter 405 gave Miller the right to pursue grandparent visitation only during the time her daughter had parental rights.  The Court rejected Miller’s argument that the doctrine of equitable estoppel should preclude the Norrises from asserting the defense that Miller had not complied with KRS Chapter 405.

Miller argued that the trial court improperly rejected her contention that the doctrine of equitable estoppel should bar the Norrises from arguing that Miller failed to assert a claim in conformity with KRS Chapter 405.  Miller asserted that had the Court accepted as true her claim that the Norrises told her she would always be allowed to visit the the children, she would also have been entitled to assert a claim of equitable estoppel.

The Court of Appeals noted that summary judgment shall be rendered if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.  The Court cited the elements of equitable estoppel which a party seeking to advance a claim must show, which are lack of knowledge of the truth, reliance on the conduct of the party to be estopped, and action or inaction which changes the conduct of the party claiming the estoppel, to his detriment.

The Court of Appeals found that in rejecting Miller’s claim of equitable estoppel, the trial court made a determination that Miller was aware of the necessity to seek grandparent visitation and the means of doing so though retained counsel.  Therefore, the Norrises were not barred by the doctrine of equitable estoppel from asserting the defense of Miller’s failure to comply with KRS Chapter 405.

Holding that the trial court correctly found there were no genuine issues as to any material fact and the Norrises were entitled to a judgment as a matter of law, the Court of Appeals affirmed the Summary Judgment of the Jefferson Family Court.

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

Rice V. Rice, Ky Ct of Appeals, Modification of Child Custody

Rice v. Rice

No. 2011-CA-002162-ME

Published:  Opinion Affirming

County:     Bracken

Jennifer Rice appeals from the order of Bracken Circuit Court denying her motion to alter, amend or vacate its order adopting the report of the Domestic Relations Commissioner which designated Willard Rice, her former husband, primary residential custodian of their three minor children during the school year.  She argues that the trial court abused its discretion and that naming Willard primary custodian was palpable error and should be reversed.

When the parties were divorced in 2009, they agreed to grant temporary custody to Willard so the children could continue their homeschooling with Willard’s mother.  In their separation agreement, the parties specified that beginning in January, 2010 the parties would share joint custody.  The children would be homeschooled by the paternal grandmother when in Willard’s custody and by Jennifer when she had custody.

In October, 2010 Jennifer filed a motion for change of custody requesting that she be designated primary residential custodian and an order requiring children to attend public schools, alleging that test results revealed the children were not functioning at grade level.

A Guardian Ad Litem was appointed, who concluded both parents would be suitable as residential parents and recommended that Jennifer be the primary custodian because of the GAL’s belief that public school would be more beneficial.  After the GAL’s report, the parties agreed the children would attend public school regardless of which parent was named primary custodian. The Court referred the issue of custody to the Domestic Relations Commissioner.

The DRC determined that the children should live with Willard during the school year and spend 3 out of 4 weekends each month with Jennifer, allowing the children to remain in or near the home where they grew up and near the paternal grandparents who had been regular babysitters. Willard had a long-term job and stable home, while Jennifer was unemployed and had unstable living arrangements.

The Court entered an order confirming the DRC’s report.  Jennifer filed a motion to alter, amend or vacate the order alleging that the DRC’s findings and the GAL’s report supported her contention that it was in the best interest of the children for her to be designated primary residential parent.  Jennifer’s motion was denied, the order confirming the DRC’s report was reaffirmed and Jennifer filed this appeal.

Jennifer was not precluded from raising a palpable error claim on appeal pursuant to CR 61.02.  The Court of Appeals, however, disagreed that granting custody to Willard during the school year was palpable error that should be reversed.

With respect to Jennifer’s allegation of abuse of discretion, the Court of Appeals considered whether the trial judge’s findings were clearly erroneous or an abuse of discretion which “implied arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.”  Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)(citations omitted).

Jennifer claimed the trial court’s ruling gave the appearance of improperly favoring grandparents over parents.  Although the grandparents watched the children while Willard was working, it did not mean the court granted custody to the grandparents.  Modification of the custody agreement was not warranted on the basis of a work schedule.

The Court of Appeals considered the applicable factors in KRS 403.270(2) and held that the trial judge did not abuse his discretion by deferring to the DRC’s recommendations, even though Jennifer claimed the grandfather was in poor health and there was an active DVO against him related to corporal punishment of the children.

The Court of Appeals held that without clearly erroneous findings by the DRC, there was no palpable error or abuse of discretion by the trial court.  The trial court’s order denying Jennifer’s motion to alter, amend or vacate the DRC report is affirmed.

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

Kidd V. Combs, Ky Ct of Appeals, De Facto Custodian and Child Custody

Aaron K. Kidd v. James Combs

No. 2009-CA-002260-ME and 2009-CA-002299-ME

Published: Opinion Affirming

County: Perry

Aaron Kidd appealed from the Perry Circuit Court ruling related to the custody of his daughter, Jaiden.  The Court awarded joint custody to Kidd and Jaiden’s maternal great-grandparents, James and Irene Combs, designated the Combses as the primary residential custodians and ordered visitation for Kidd and Jaiden’s mother, Shannon Combs.  Kidd contests the Court’s designation of the Combses as de facto custodians and the custody ruling.

Aaron Kidd and Shannon Combs, Jaiden’s parents, never married, but began living together in Lexington in October 2001.  Jaiden was born in July, 2002.  In February, 2003, Aaron sustained a gunshot wound to the face in the line of duty as a police officer, in a confrontation in which Aaron shot and killed his attacker.  The ensuing controversy and safety concerns led Shannon to ask her grandparents (who had raised her) to take Jaiden to Hazard until Aaron recovered and the investigations were complete.  When Aaron returned to work as a police officer, Shannon was working and attending college, so they decided to leave Jaiden with the Combses until Shannon completed her education.   The parents visited the child in Hazard and the child visited them in Lexington.  When Aaron and Shannon broke up in 2006, a paternity test established that Aaron was Jaiden’s father.

Jaiden lived with the Combses from 2003 until 2007.  In 2006 it was determined that Jaiden needed dental care but Shannon was afraid to allow the required general anesthesia to be administered.  In 2007, Aaron took Jaiden to his own dentist, who performed the necessary extractions and fillings.

In July, 2007 Shannon filed a petition against Aaron for custody and child support and he filed a counterclaim seeking custody of Jaiden.  After a temporary custody hearing on August 3, 2007, the Court found the Combses to be de facto custodians and granted them temporary custody.  The Combses moved to intervene and for de facto custody.  The motion to intervene was granted, the petition was filed and a guardian ad litem was appointed for Jaiden.

A Domestic Relations Commissioner conducted a hearing in February, 2009.  The GAL recommended joint custody to the Combses and Aaron, and the DRC recommended sole custody to the Combses, with visitation to Aaron and Shannon.  The Court awarded joint custody to the Combses and Aaron with reasonable visitation for Shannon.  Aaron appealed the custody ruling and the Combses cross-appealed from the joint custody award, seeking sole custody of Jaiden.

During the pendency of the Appeal, Irene Combs died.  Aaron moved to remand this case to circuit court for consideration of his motion to modify custody because of the change in circumstances.  After an evidentiary hearing, James and Aaron were awarded joint custody, James continuing as primary residential custodian and visitation as previously ordered for Shannon and Aaron.  The case returned to the Court of Appeals to determine if the Combses were properly named as de facto custodians and joined as parties after the temporary custody hearing.

The Court of Appeals held that the circuit court had statutory authority to join the Combses as parties to the custody action and allow them to intervene and petition for custody once it found they met the requirements to be de facto custodians.  To determine if the Combses were properly named de facto custodians, the Court of Appeals explained that the meet this status, a person must have been the child’s primary caregiver and the primary financial supporter of the child.

The Court found that the Combses had been primary caregivers and financial supporters of Jaiden and provided her only real home in her first five years.  Aaron argued that a six-week period when he took Jaiden to his home broke the period of time required to qualify as a de facto custodian.  This was rejected by the Court because the Combses never agreed that Aaron was taking the child for more than a week’s visit.

The Court of Appeals held that the Circuit Court did not abuse its discretion in designating the Combses as de facto custodians and affirmed the 2009 custody award.

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

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

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

Published:   Reversing and Remanding

County:  Greenup

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

FACTS:

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

ANALYSIS:

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

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

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

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

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

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

Reversed and remanded to FC. 

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

D.G.R. v. Com, Ky S. Ct, Termination of Parental Rights

D.G.R. v. Com., 2010-SC-000100-DGE

Published:   Reversing

County: Caldwell

Parents appealed CA order remanding to the trial court for an order terminating the mother and father’s parental rights.

FACTS:

A.T.H was twelve at the time of the termination hearing.  He had been diagnosed with autistic disorder, attention deficit hyperactivity disorder, and possible bipolar disorder.  D.G.R. and T.B.H. are the child’s parents, who never married but lived together. Three abuse petitions were filed by the Cabinet over a four year period.  The Cabinet then filed a petition to terminate the mother and father’s parental rights.  TC found by clear and convincing evidence that the child had been abused and neglected and that the child had been in foster care for a total of forty-three months.  However, TC denied the Cabinet’s petition on the basis that termination was not in the child’s best interests.  Cabinet appealed.  CA reversed and remanded to TC for an order terminating the mother and father’s parental rights, holding that all of the factors in KRS 625.090(3) weighed in favor of termination being in the child’s best interests.  CA found that there was overwhelming evidence that the parents, on more than one occasion, either abused the child or allowed the child to be abused, the parents were guilty of neglect regarding a sexual disease the child presumable caught from the father, the parents used corporal punishment on the child, the child was not appropriately stimulated, the house was unsanitary, the parents lacked empathy toward the child, and the parents were unable and unwilling to provide basic needs for the child, much less provide for his special needs.

ANALYSIS:

SC noted that the evidence presented offered two starkly different pictures of the child’s care from parents in the home.  In addition to the evidence noted by CA, the Cabinet also offered evidence of the Child’s marked improvement in behavior while at Our Lady of Peace and the testimony of witnesses regarding the parents’ inability to meet the Child’s needs, failure to accept responsibility for his problems, and refusal to change their parenting behaviors.  The parents’ witnesses, on the other hand, testified that the parents had a good relationship with the child, that mother worked to improve her parenting skills, and that the parents provided a clean and neat home for the child. 

SC noted that the termination statute, KRS 625.090, establishes different standards of proof for the Cabinet and the parents whose rights are to be terminated when the court considers the best interest of a child. While the Cabinet must prove the necessary statutory allegations by clear and convincing evidence in order for TC to terminate parental rights, KRS 625.090(1) and (2) (requiring a finding that termination is in best interests of child), the parents must only present proof by a preponderance of the evidence that the child will not be abused or neglected in the future in order to allow TC to exercise its discretion not to terminate, KRS 625.090(5).

As part of determining the best interest of the child and whether sufficient grounds for termination existed, TC was further required to consider several other statutory factors in KRS 625.090(3), including any mental illness of the parents, the reasonable efforts of the Cabinet to reunify the family, the efforts of the parents to return the child to the home, the state of the child and payment of support by the parents while the child was in the Cabinet's custody. SC held that these are factors to be considered but are not a checklist; they do not dictate a result, as TC must make an overall finding of the best interests of the child. 

SC held that TC was entitled to rely on the witnesses it found most convincing, and TC’s findings indicated that it gave significant weight to the parents' witnesses. And even if TC found clear and convincing grounds to terminate, TC could still shift from considering that proof and consider whether the parents had established, by a preponderance of the evidence, that the child would not continue to be abused or neglected, and exercise its discretion not to terminate. KRS 625.090(5). TC is never required to terminate under the statute.

SC could not say that TC was clearly erroneous in choosing to believe the witnesses offered by the parents, nor that their testimony was insufficient to support TC's determination.  Additionally, there was not enough evidence to terminate mother’s parental rights. Termination must be decided as to each parent separately.

CA reversed and TC’s judgment denying Petition to terminate parental rights of parents reinstated. 

DISSENT:

“As is appropriate, this Court considers termination of parental rights a serious matter, and we accepted discretionary review to insure that termination of the parents' rights followed due process. Nevertheless, after careful review of the record below, it is clear that the trial court failed to apply the law correctly - a mistake the majority repeats. These errors of law leave a defenseless, disabled young boy vulnerable to the parents who have abused and neglected him, and prevent the Cabinet from attempting to find this child a permanent, loving and stable therapeutic adoptive home. … The majority excuses all of the above grievous errors by relying on KRS 625.090(5). Although this provision gives the trial court discretion to refrain from terminating parental rights where the parents prove, by a preponderance of the evidence, that the child will not continue to be abused or neglected in the future, this analysis is not a substitute for the best-interest finding that the trial court is REQUIRED to make under KRS 625.090(3).

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

Daugherty v. Tellek, Ky. S. Ct., Emergency Protective Orders. Domestic Violence Orders. Time for Hearing.

Daugherty v. Telek

No. 2011-SC-000043-DGE

Published:  Opinion Reversing and Remanding

County:  Kenton

After the Kenton Family Court granted Appellant, Samantha Daugherty’s petition and issued a Domestic Violence Order against Appellee, John Telek, Appellee appealed the Order to the Court of Appeals.  The CA held that the family court lost jurisdiction to issue the DVO because it failed to conduct the DVO hearing within 14 days after issuance of an emergency protective order as required by statute.

Appellant’s petition for a DVO was filed August 18, 2009, and the family court issued an EPO to remain in effect until a hearing on August 26.  On that date, Appellee’s counsel requested the Court to reschedule the hearing so the guardian ad litem of the parties’ child could be present.  The judge agreed to the postponement and said he would re-issue the EPO at fourteen-day intervals until the new hearing date of November 13, 2009.  No objections were voiced by any parties.

On September 9, 2009, Appellee appeared in Court for the domestic violence docket and was informed by the Court that the hearing was set for November and the EPO was re-issued for another 14 days, expiring on September 23, 2009.  There was no objection to re-issuance of the EPO.

On September 22, Appellee filed a motion to dismiss the EPO alleging family court lost jurisdiction when it failed to hold a hearing within fourteen days after issuance of the original EPO.  The motion was taken under submission and the EPO was re-issued until a hearing scheduled for October 7.  On October 7, the court issued another fourteen-day EPO.

On October 21, 2009, the family court overruled Appellee’s motion to dismiss and conducted a hearing on the issuance of a DVO.  The Court found that domestic violence had occurred and entered the DVO.  Telek appealed the DVO to the Court of Appeals.  The Court of Appeals agreed with Telek that the statute required that a hearing be held within 14 days after initial issuance of an EPO, and beyond that date a DVO based on the original petition could not be issued and family court lacked subject matter jurisdiction to issue the DVO.

The Supreme Court granted discretionary review to consider whether the statutory time limit for issuing a DVO affects the subject matter jurisdiction of the family court and also to examine the Court of Appeals’ construction of KRS 403.740 (4) applicable in 2009, when the DVO against Telek was sought.

The Supreme Court held that in deciding that a family court’s deviation from a statutory procedure divested it of subject matter jurisdiction, the Court of Appeals confused a court’s erroneous action within its jurisdiction with a court acting outside its subject matter jurisdiction.  SMJ is established by constitutional provisions and statutes assigning courts specific types of claims and causes of action.  A court is deprived of SMJ only if it has not been given, by constructional provision or statute, the power to do anything at all.  The court has SMJ when the kind of case identified in the pleadings is one which the Court has been empowered to adjudicate.  A court does not lose SMJ by misconstruing or overlooking a statute or rule governing the litigation.  Once a court acquires SMJ, challenges to its rulings are questions incident to the exercise of jurisdiction, rather than the existence of jurisdiction.

The Supreme Court agreed with Telek that the statute required “fixing” a date and time for the DVO hearing within 14 days of the issuance of EPO.  The Court noted, however, that a full hearing on a DVO may be rescheduled as circumstances require.  The statute in effect at the time did not expressly authorize serial reissuance of an EPO, nor did it specifically bar that process.

Because the Court of Appeals ruled in Telek’s favor on the grounds of SMJ, it was not necessary to rule on his claim that the evidence presented at the DVO hearing was insufficient.  If, however, upon discretionary review the Supreme Court reversed the grounds upon which the Court of Appeals based its decision, it is appropriate to remand the case to the Court of Appeals for its consideration of undecided issues.  Having reversed the Court of Appeals upon the grounds that formed the basis of its decision, the case is remanded to the Court of Appeals for consideration of Telek’s challenge to the sufficiency of the evidence.

The decision of the Court of Appeals is reversed and this matter is remanded to the Court of Appeals for proceedings consistent with this opinion.

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

Willis v. Willis, Ky COA, QDRO Modification, Jurisdiction

Larry Willis v. Ruby Willis

No. 2010-CA-002328-MR

Published: Opinion Reversing

County: Boyle

Larry Willis appealed from the November 30, 2010 order of Boyle Family Court modifying a Qualified Domestic Relations Order entered July 16, 2009.

The parties were married in 1992 and Ruby filed a petition to dissolve the marriage in March 2007. The parties participated in mediation in July, 2007 and reached an agreement which Larry reluctantly signed. On August 22, 2007, Ruby returned to the marital residence to retrieve personal items and furniture, and violence ensued. Larry shot Ruby twice and inflicted a massive head injury by kicking her. She is now permanently disabled and guardians and conservators have been appointed to care for her needs. Larry was convicted of criminal charges in connection with the attack and received five to ten year sentences, to be served concurrently.

On December 22, 2008, the family court entered the final decree of dissolution incorporating the property settlement agreement. Ruby received all the marital property and $91,000.00 from the nonmarital portion of Larry’s retirement as an offset. In July, 2009, Ruby filed a motion to enter a tendered Qualified Domestic Relations Order, awarding $91,000.00 to Ruby and the balance in the amount of $201,536.05 to Larry.

In October, 2010, Ruby moved the family court to modify the QDRO. Because the QDRO referenced the amount in the retirement accounts at the time of the marriage as Larry’s nonmarital property, before large market losses occurred, Ruby requested the family court to amend the QDRO to reflect that his nonmarital portion be reduced by the same market loss as her marital portion.

The family court conducted a hearing and directed both parties to submit proposed findings of fact and conclusions of law. The court entered Ruby’s version and ordered a modification of the QDRO, subtracting $145,699.83 from Larry’s nonmarital portion and awarding the funds to Ruby.

On appeal, Larry argued that the family court abused its discretion in reassigning his nonmarital property to Ruby, that the parties entered into a valid separation agreement, that the family court did not have jurisdiction to modify the QDRO, and that Ruby failed to appeal from either the decree or the original QDRO.

The Court of Appeals agreed with Larry that the family court violated KRS 403.190 in reassigning his nonmarital property to Ruby, that the parties entered into a valid separation agreement, and that family court did not have jurisdiction to modify the QDRO fifteen months after its entry.

Therefore, the Court of Appeals held that the Boyle Family Court abused its discretion in modifying the QDRO and reassigning a portion of Larry’s nonmarital property to Ruby and the family court’s order entered November 30, 2010 is reversed.

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

 

 

 

 

 

Copas v. Copas, Ky COA, Division of Military Retired/Disability Pay

Kathy Joan Copas v. Richard Dale Copas

No. 2009-CA-000685-MR and No. 2009-CA-000720-MR

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

County:  Shelby

This opinion addresses the combined appeal and cross-appeal from Shelby Family Court orders modifying the division of Richard’s military retired pay between Richard and his former spouse, Kathy.

There are three issues.  First, did the family court abuse its discretion in utilizing CR 60.02(f) to reopen the order dividing the parties’ marital property?  Second, did the family court abuse its discretion in modifying the language in a previous order concerning division of Richard’s military retired pay?  Third, did the family court abuse its discretion by granting Kathy’s CR 59.05 motion by adding language to the order which designated Richard’s disability benefits as marital property and then dividing it between the parties?  As to the first two questions, the Court of Appeals found no abuse of discretion, but found that the family court did abuse its discretion as to the last issue.

On June 18, 1997, the family court entered a limited decree dissolving the parties’ twenty-five year marriage, reserving judgment on property issues, which were referred to the Shelby County Domestic Relations Commissioner.  The DRC submitted Findings of Fact, Conclusions of Law and Recommendations on May 21, 1998.

Richard earned the right to military retired pay based on thirty years of service and the DRC found that 21 years and 9 months of service accumulated during the marriage and was marital property to be divided equally between the parties.  Both parties filed exceptions, which the family court overruled on September 28, 1999.  Thereafter, the court conducted a hearing on supplemental exceptions.  On November 6, 2000, the court entered an order resolving all outstanding issues including a provision that Kathy receive 50% of Richard’s pension.

Kathy submitted Form 2293 to the Defense Financial & Accounting Service (DFAS), an “Application for Former Spousal Payment of Retired Pay” requesting 50% of Richard’s disposable retired pay per month.  Kathy’s completion of the form as she did disregarded the distinction between marital and nonmarital portions of Richard’s military retired pay.  As a result, she received 50% of the retired pay Richard earned while not married to Kathy, a benefit to which she was not entitled.

At retirement, Richard was entitled to $4400.00 per month, so based on the form Kathy submitted, they each began to receive $2200.00.  Richard sought military disability benefits and the VA determined he was 40% disabled and entitled to receive $568.00 per month.  Federal regulations require offset of military retired benefits by disability benefits so Richard’s non-disability military retired pay was reduced from $4400.00 to $3832.00, divided equally between Kathy and Richard.

In July, 1970 Richard filed a motion requesting family court to direct that Kathy only receive 50% of the portion of his disposable military retired pay attributable to the marriage, and on November 17, 2008 the family court so ordered.  On November 26, 2008 Kathy filed a motion pursuant to CR 59.05 to alter, amend, or vacate the November 17, 2008 order on the grounds that the family court improperly modified the 1999 Property Order with respect to division of Richard’s military retired pay.  She also filed a motion requesting a new trial under CR 59.01 and a motion for additional findings under CR 52.02.  Her CR 59 motion asked the family court to amend its November 17, 2008 order to require DFAS to take Richard’s disability income into account when dividing his military retired pay.

An abuse of discretion standard of review is applied to a family court’s rulings on CR 59.05 and CR 60.02 motions.  The test for abuse of discretion is whether the judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Although the family court did not specify under which rule it was modifying the 1999 Property Order, the Court of Appeals treated Richard’s motion and the family court’s corresponding order as brought pursuant to CR 60.02.  Because information provided to DFAS was incomplete, DFAS paid Kathy a greater proportion of Richard’s military retired pay than that to which she was entitled.  The Court of Appeals found that DFAS’s misinterpretation of the 1999 Property Order was a sufficient basis for granting CR 60.02(f) relief to allow the family court to adjust the order’s language to meet DFAS ‘s specific requirements.  The Court of Appeals also found no abuse of discretion when the family court modified the language of the 1999 Property Order pursuant to CR 60.02(f).

The Court of Appeals next considered the family court’s granting Kathy’s CR 59.05 motion and adding language directing DFAS to take into account Richard’s disability pay when dividing his military retired pay.  Because a retiree’s disposable retired pay is lower when he receives disability payments, the retiree’s former spouse’s portion of the retiree’s retired pay is also reduced.  The Court of Appeals acknowledged the potential inequities which may result when a retiree elects to receive disability payments, but noted that both federal and state law prohibits treatment of a retiree’s disability payments as marital property.  The family court’s order erroneously converted Richard’s disability benefits from nonmarital property into marital property in violation of federal law.  Further, the Court of Appeals stated that while a CR 59.05 motion may be used to challenge a CR 60.02(f) order, it may not be used to collaterally attack the original judgment.

The Shelby Family Court did not abuse its discretion in reopening and modifying the 1999 Property Order pursuant to CR 60.02(f) but it did abuse its discretion by requiring DFAS to consider Richard’s disability payments in dividing his military retired pay.  Accordingly this matter was affirmed in part, reversed in part, and remanded for additional proceedings consistent with this opinion.

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

 

 

 

Gossett f. Kelley, et al, Ky COA, Subject Matter Jurisdiction for Custody Modification

Jessica Gossett v. Brian Scott Kelley, et al.

No. 2011-CA-001536-ME

Published:  Opinion Vacating

County:  Hopkins

Jessica Gossett appealed an order entered by the Hopkins Family Court naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica and Kenneth Gossett and awarding custody to the Kelleys.  The appeal was based on matters of venue and adequacy of evidence, but the Court of Appeals was required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction.

The Gossetts were divorced by a decree entered in Christian Family Court on January 11, 2011.  Jessica was awarded sole custody.  Ten days later, the Kelleys filed a petition for custody of the minor child claiming standing as de facto custodians and asserting that the Gossetts had waived their superior right to custody.  No affidavits were attached to their petition.

On February 21, 2011, there was a venue hearing in Hopkins County, and another hearing in that court on the standing issue on April 27, 2011.  Jessica’s venue challenge was rejected and the family court ruled the Kelleys had standing and they were awarded custody.

The Court of Appeals began its analysis by considering subject matter jurisdiction.  The Kelleys were aware of the proceedings in Christian Family Court and could have sought standing as de facto custodians, but they did not participate in that action.  Sole custody was awarded to Jessica.

Once the Christian Family Court order was entered, any subsequent action affecting custody was a modification.  The Kelleys and the Hopkins Family Court relied on KRS 403.270 for subject matter jurisdiction, but only KRS 403.340 provides the court SMJ to modify custody decrees.  A motion to modify custody must be accompanied by the requisite affidavit or affidavits.  No affidavits were submitted and therefore the Hopkins Family Court never had SMJ.  The affidavit(s) must support a change of circumstances of the child or his custodian and modification must serve the best interests of the child.  In addition to the failure to file supporting affidavits, the Hopkins Family Court order makes it clear there was no change in circumstances.

Because the Hopkins Family Court lacked subject matter jurisdiction to modify the final custody decree entered in Christian Family Court, the order granting the Kelleys de facto custodian status and awarding them custody is vacated.

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

 

Mitchell, el al. v. Mitchell, Ky S. Ct., Attorney Fees, Finality of Judgment

Mitchell, et al. v. Mitchell

2010-SC-000722-DG

Published:  Opinion Reversing and Remanding

County:  Fayette

The parties divorced in 1990, ending a 24-year marriage.  Their agreement provided the wife $3000.00 per month in maintenance which was subject to modification if she became more employable as a result of education she received from husband’s financial assistance.  In October, 2008 husband filed a motion to modify maintenance after wife received a bachelor’s degree in social work from the University of Kentucky.  In June, 2009, wife filed a motion for attorney fees, expert fees, and costs incurred to defend the motion for modification.

On June 22, 2009, family court heard testimony on both motions, and on June 30, 2009 entered an order finding insufficient grounds for modification of maintenance.  The order did not mention wife’s motion for fees and costs.  On July 1, 2009, wife’s attorney emailed the judge’s clerk regarding the fees and on August 13, 2009 the judge’s secretary informed husband’s attorney that wife was going to file an affidavit concerning fees and that husband would have one week to respond, after which there would be a hearing.

At the hearing on September 4, 2009 husband objected on the grounds that family court no longer had jurisdiction over wife’s motion.  On September 16, 2009 the trial court granted wife’s motion and awarded $19,161.80 in attorney fees and held that husband’s objection was without merit.

 Husband appealed to Court of Appeals, which held family court lacked jurisdiction to grant wife’s motion and reversed award of attorney fees.  Wife then appealed from Court of Appeals’ decision and discretionary review was granted.

 Husband contended that trial court’s granting of fees to wife was an amendment to its decision denying his motion to modify maintenance.  Since wife’s motion was not granted within 10 days following denial of husband’s motion, he asserted that CR 52.02 divested family court of jurisdiction.  The Supreme Court disagreed, however, finding that CR 52.02 applied only to the amendment of judgments.  The ten day time limit would apply only if the order denying husband’s motion to modify was a final judgment.

The finality of a judgment depends upon whether a case involves a single claim or multiple claims.  If the case involves a single claim, all rights of all parties must be adjudicated in order to be final.  CR 54.01.  Multiple claims involve the application of CR 54.02(1) which states a final judgment may be granted on less than all claims only if it is determined there is no just cause for delay.  Absent such determination, the decision is interlocutory and subject to revision at any time before entry of judgment adjudicating all claims.

The Supreme Court found that wife’s motion for attorney fees was a separate motion by a party opposed to the initial action, and more akin to a counterclaim.  Different facts supported each motion in that husband relied on wife’s attainment of a bachelor’s degree and the basis for wife’s claim was the financial disparity of the parties.

Holding that the motions of each party constituted separate claims for the purposes of CR 54.02, the Supreme Court reversed the opinion of the Court of Appeals and remanded to that court for consideration of the merits of husband’s appeal of the trial court’s order awarding attorney fees to wife.

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

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

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

No. 2011-CA-00504-ME

Published: Opinion Affirming

County: Kenton

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

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

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

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

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

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

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

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

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

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

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

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

J.P. v. S.B.B. and B.B., Ky COA, Paternity and Standing

J.P. v. S.B.B. and B.B.

No. 2011-CA-000516-ME

Published: Opinion Vacating and Remanding

County: Pulaski

J.P. appeals an Order of Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support.

J.P. and S.B.B. had an affair that lasted several years, from approximately 2001 until 2007. S.B.B. was married the entire time and sexually active with J.P. and her husband. S.B.B. gave birth in January 2004 to T.C.B. and J.P. was involved in the child’s life until S.B.B. ended the affair in 2007. When S.B.B. terminated his visits, J.P. filed a petition to establish paternity, custody, visitation, and child support in July, 2009. In September, 2009, J.P. filed a petition for genetic testing to establish paternity.

The Pulaski Circuit Court held a hearing in November, 2010 and entered its findings of fact and conclusions of law in February, 2011. The trial court found that since the marital relationship between S.B.B. and her husband had not ceased during the ten month period preceding the birth of T.C.B., that J.P. lacked standing to pursue a paternity action and further held that it did not have subject matter jurisdiction.

Standing is defined as a party’s right to make a legal claim or seek judicial enforcement of a duty or right, and the requirement is met if the party has a real and substantial interest in the subject matter of the litigation. Whether a party has standing is determined by the facts of the case.

The trial court relied on J.N.R. v. O’Reilly, 264 S.W. 3d 587 (Ky. 2008) which focused on the date the marital relationship ceased. The legal presumption was that a child born to a married woman was the child of her husband unless evidence shows the marital relationship ceased ten months before the child’s birth. 

Several months after this case, the Supreme Court overruled O’Reilly in J.A.S. v Bushelman, 342 S.W. 3d 850 (Ky. 2011), and shifted the legal analysis away from the status of the woman’s marriage and instead scrutinized whether the woman’s lover presented sufficient evidence to support the possibility of a paternity claim. Because Bushelman superseded O’Reilly, the Court of Appeals held that J.P. had presented enough evidence to proceed with his paternity claim. Accordingly, pursuant to the more recent authority set forth in Bushelman, the order of the trial court is remanded for additional proceedings.

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

 

 

 

 

 

 

 

 

 

 

 

 

Brosnan v. Brosnan, Ky COA, maintenance, division of marital property and debt, attorney fees, qualifications of social worker to give opinion evidence of PTSD.

Timothy M. Brosnan v. Margaret Brosnan

No. 2010-CA-000229-MR, No. 2010-CA-000272-MR, No. 2010-CA-000849-MR

Published: Opinion Affirming

County: Jefferson

Timothy Brosnan appeals and Margaret Brosnan cross-appeals from judgment of Jefferson Family Court dividing marital property and debts and awarding maintenance to Margaret. Margaret also appeals from Jefferson Family Court order denying her motion for attorney fees incurred on appe

Timothy alleges that a social worker was erroneously permitted to offer expert opinion, and that the amount and duration of maintenance awarded to Margaret was an abuse of discretion. Margaret argues the trial court awarded insufficient maintenance, improperly divided parties’ bank accounts, improperly divided credit card debt, failed to require Timothy to keep her on his life insurance policy, and erred when it denied her request to withhold dissolving marriage until January 1, 2010 to permit filing of joint tax returns and denied her request to require Timothy to pay her one half the 2008 tax refund prior to sale of marital residence. She also argues that family court erred when it failed to advance her attorney’s fees on appeal and cross-appeal.

The trial court divided the marital property and ordered Timothy to pay Margaret her share from his half of the proceeds from the sale of the marital residence. The trial court found that Timothy dissipated funds from a joint savings account and ordered him to pay the parties’ entire credit card debt. On the issue of maintenance, the trial court permitted, over Timothy’s objection, the testimony of a social worker who diagnosed Margaret with PTSD and incapable of employment because of a variety of symptoms. Margaret was awarded maintenance for fifteen years and $3000 in attorney’s fees.

Both parties filed motions to alter or amend, both of which were denied. Timothy appealed and Margaret cross-appealed. Margaret also filed a motion in family court for an advance of attorney’s fees for the appeal, which the family court denied.

The Court of Appeals held that family court abused its discretion when it permitted the social worker to opine that Margaret has PTSD. Since the social worker lacks training and education to diagnose psychological disorders, her testimony was inadmissible. The Court concluded, however, that since the trial court did not rely on the social worker’s testimony and based its findings on the factors in KRS 403.200, the error was harmless, not requiring reversal. Margaret’s claims that the maintenance award is inadequate was denied, the Court finding no abuse of discretion. The Court found no abuse of discretion in any of the other issues presented on the appeal or cross-appeal.               

On the issue of Margaret’s attorney’s fees on appeal, the Court of Appeals held that family court retains jurisdiction over this matter after an appeal is filed. Prospective fees may be awarded and the trial court retains jurisdiction to alter its award and order reimbursement of any unjustified amounts. Therefore, Margaret shall be permitted to file a motion for attorney’s fees as a result of this appeal.

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

Gaskill v. Robbins (#2), Ky COA, Date of Business Valuation in Divorce; Judgment Interest

Gaskill v. Robbins

2010-CA-001814-MR

http://opinions.kycourts.net/coa/2010-CA-001814.pdf

Published:  Affirming

County: Warren

Wife appealed FC’s Findings of Fact, Conclusions of Law, and Judgment regarding valuation and distribution of her oral surgery practice in dissolution proceedings, on remand from appellate court.

FACTUAL AND PROCEDURAL BACKGROUND:

Wife established oral maxillofacial surgery practice during marriage, which was parties’ largest asset at time of divorce.  At trial, Wife’s expert presented two separate reports regarding practice’s value, both comparing assets and liabilities.  The first report reflected that the practice had a value of $237,000 as of 12/31/03.  Wife’s expert also applied a 10% discount for lack of marketability, though he initially had discounted the value by 23%. He testified that this discount represented the ability to quickly convert property to cash at a minimal cost.  His second report valued the business as of December 2004 at $114,000, which he testified reflected a significant drop in cash from the prior report.  Husband’s expert valued the business using data from Wife’s expert, but averaging the values resulting from four different valuation calculations, and determined the business’ value at $669,075.  FC agreed with this value and Husband correspondingly received a large sum of cash.  Wife appealed and, ultimately, SC determined that FC erred by failing to recognize the presence of both business and personal goodwill and by using an arbitrary average of numbers to determine the business’ value.  On remand and the basis for this appeal, FC determined that the business’ value subject to division was $237,000.  On appeal, Wife argues that FC should have adopted valuation performed closest to date of decree; that FC failed to apply a 23% discount rate to 2004 value; and that FC should have awarded her post-judgment interest on the money she overpaid Husband pursuant to FC’s first judgment. 

ANALYSIS:

CA noted that there is no presumption that assets should be valued within close proximity to the date of decree and that Kentucky has not adopted one particular method of valuation.  CA noted that Wife’s expert testified that 2004 was an unusual year for the practice due to the significant drop in cash; that Wife had dissipated $199,000 by transferring the funds to her mother and FC had considered this as a credibility factor in the valuation; that Wife had made frequent fund transfers from the business without a proper accounting; and that Wife had sole control of the business during 2004.  Given these facts, CA found FC had ample evidence to support its decision to base the valuation on the 2003 report.  CA also found Wife’s argument that FC should have applied 23% discount for lack of marketability given the lack of cash in 2004 to be moot given the appropriate use of the 2003 valuation.  Lastly, CA held that Wife was not entitled to post-judgment interest on amounts over-paid to Husband; given that the original judgment was vacated, there was no judgment from which interest would accrue; and awards of pre-judgment interest on unliquidated claims are within the trial court’s discretion, and FC did not abuse its discretion in refusing to make such an award. 

CA’s order affirmed.

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

Burton v. Burton, Ky COA, Modification of Parenting Time

Rebecca Josephine Burton v. Nicholas Martin Burton

No. 2011-CA-000573-ME

Published: Opinion Affirming

County: Lyon

Rebecca Burton appeals from an order of Lyon Circuit Court modifying parenting time in favor of Nicholas Burton.

The parties are parents of two children, Liam and Megan.  When they were divorced in 2006, they agreed to joint custody with Rebecca as the primary physical custodian. After the divorce, Rebecca attended school and worked at Dress Barn, and within a few months, she and the children moved in with her boyfriend, James, to which Nicholas voiced no objection.  Immediately after the divorce, Nicholas had limited involvement with the children and Rebecca requested the court to require him to spend more time with the children and assist with childcare while she was in school or working.

In December 2010, Nicholas filed a motion for modification of custody and ex parte relief and alleged the children should be removed from Rebecca’s home because he believed their physical and emotional well-being was at risk.  His numerous complaints included allegations that another adult male had moved into Rebecca’s home, that the children were sent to school unclean, inappropriately dressed and without lunch money, that Megan showed no interest in the children’s school work, and Rebecca failed to provide proper medical, dental and vision care for them.  An ex parte order granted temporary sole custody to Nicholas who immediately removed the children from Rebecca’s care.  On Rebecca’s subsequent ex parte motion, the ex parte order of sole custody was vacated and a hearing was held.

Although James testified that his friend, Jay Harbin, had stayed in their home on several occasions, he had not moved in.  Harbin had a 15 year old drug conviction, however, and the trial court found that exposing the children to a convicted felon was not in their best interest.  James has three older children who visit on weekends, and the kids enjoy sleeping on couches and sleeping bags.  The trial court found this “obviously interrupted” the children’s routine.  Rebecca’s failure to sign Megan’s reading log consistently led the trial court to conclude that she did not read with Megan regularly.  Teachers did not attribute any improvement in Liam’s behavior to anything Nicholas was doing and further testified that the children were clean and appropriately dressed.  Rebecca presented evidence that she provided health and dental care for them.

Rebecca presented evidence that Nicholas was arrested for drunk driving in 2008 while on his way to pick up the children.  An officer responding to a complaint about his reckless driving from a passerby found Nicholas and his car on a stranger’s lawn.  He was unable to stand up, had urinated on his pants, and failed field sobriety tests.  He admitted having taken Ambien but failed to explain the erratic driving.  The trial court found this incident of “little probative value.”

After the hearing, the trial court entered findings of fact and conclusions of law and designated Nicholas as the primary residential parent, to which order Rebecca filed this appeal.

At the outset, the Court of Appeals reiterated the holding in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) that under a request for modification of parenting time, the trial court considers the best interest of the child as set forth in KRS 403.320.

When reviewing a custody decision, the test is whether the trial court’s findings were clearly erroneous or the decision was an abuse of discretion.  Findings of fact are only clearly erroneous when they are manifestly against the weight of the evidence.  The test is not whether the appellate court would have reached a different ruling, but whether the trial court’s ruling was clearly erroneous, whether it applied the current law, or whether it abused its discretion.

In this case, the CA could not say the TC’s findings of fact were clearly erroneous or that it applied incorrect law.  Based on those findings, the trial court decided Nicholas should be the primary residential parent.  The CA held that the trial court was in the best position to judge the credibility of the evidence and would not substitute its judgment on appeal.  Discerning no reversible error with the trial court’s findings of fact and conclusions of law, the Lyon Circuit Court Order was affirmed.

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