Divorce Law Journal

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.

 

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.

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.

Keifer v. Keifer, Ky. S. Ct., Findings of Fact in child custody and parenting time decisions

Keifer v. Keifer

2010-SC-000694-DGE

Published:  Vacating and Remanding

County: Hardin

Dad appealed CA’s reversal of TC order modifying parenting time without making specific findings, arguing to SC that written findings of fact are not required when TC rules upon a motion to modify visitation provisions of a prior decree, but even if they were required, Mom did not preserve the issue for appeal because she did not move TC for specific findings in accordance with CR 52.04.

FACTUAL AND PROCEDURAL BACKGROUND:

FC awarded Mom and Dad joint custody of children in divorce with no designation of primary residential parent, although effect of parenting time schedule was that Children primarily lived with Mom, a soldier in the Army.   A year later, Mom received orders to relocate to Texas and filed a Motion to modify parenting time.  After hearing, FC orally indicated that decree would be modified so that Children would live primarily with Dad with Mom having visitation.  FC orally provided basis for this decision, specifically discussing factors from KRS 403.270 and several references to “best interests of the children.”  Dad’s counsel agreed to submit written order reflecting the court’s decision; however, this Order, which was entered by FC, failed to provide any factual findings or application of KRS 403.270 or best interests of Child standard.  Mom appealed FC’s Order to CA.  CA reversed FC due to failure to reflect consideration of KRS 403.270 factors, but remanded for further proceedings with no further guidance to FC.  

ANALYSIS:

“Compliance with CR 52.01 and the applicable sections of KRS Chapter 403 requires written findings, and [trial courts must] include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions.”

SC also held that a FC’s failure to make the required findings of fact allows CA to remand for findings, even where no motion for specific findings is made.  SC provided that, because it was familiar with FC’s oral findings, the case would be remanded to FC for entry of a new order setting forth in writing FC’s findings of fact and conclusions of law, but FC could, for this purpose, rely upon its discussion from the bench at the conclusion of the evidentiary hearing. However, SC noted that it would not expect appellate courts to search video records or transcripts and again emphasized the need for FC/TC to issue written findings.   

CA’s order vacated and remanded.

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

Shafizadeh v. Bowles and Shafizadeh, Ky. S. Ct., Writs of Prohibition, Modification of Parenting Time v. Modification of Custody

Shafizadeh v. Bowles and Shafizadeh

2010-SC-000747-MR

Published:  Affirming

County: Jefferson

Dad appealed CA’s denial of his writ of prohibition, which sought to prevent Mom’s relocation with Children.

FACTUAL AND PROCEDURAL BACKGROUND:

Mom and Dad divorced, agreeing to joint custody of their two minor children in 2008.  In 2009, Mom moved FC for a change in parenting schedule based on her relocation to Louisiana, and FC granted the motion on August 12, 2010.  On September 24, 2010, Dad moved CA for a writ of prohibition and for emergency relief under CR 76.36, claiming that FC was acting outside of its jurisdiction, but that even if it did have jurisdiction, there was not adequate remedy by appeal.  CA denied writ, summarily dismissing the claim of lack of jurisdiction, but going into much greater detail regarding why Dad had failed to satisfy the adequate remedy by appeal requirement.  Dad appealed to SC, arguing only that FC was acting outside it jurisdiction.  He contended that Mom’s motion should have been construed as a motion to modify custody, not parenting time.  Motions to modify custody require supporting affidavits before FC acquires jurisdiction over them; since there were no affidavits filed in support of Mom’s motion, Dad argued FC lacked jurisdiction to consider it. 

ANALYSIS:

Relying on Brockman v. Craig, Dad argued to CA that whenever there is a joint custody arrangement that is silent as to designation of primary residential custodian (“PRC”), any attempt by one parent to relocate would amount to an attempt to acquire, and therefore, change the PRC designation, and this, in turn, is a modification of custody.  SC noted that CA in Brockman relied on the holding in Crossfield v. Crossfield that a change in PRC was a modification of custody, but that the Crossfield holding is overruled by Pennington v. Marcum.  Per Pennington, a parent seeking to become PRC in a joint custody arrangement is seeking a modification of timesharing, not custody, as a designation of PRC does not alter the decision-making authority of joint custody.  As Mom’s motion sought only to change time-sharing, it was not a modification of custody, and she needed not have provided FC with supporting affidavits in order for FC to acquire jurisdiction over the motion. 

CA affirmed.

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

Published Family Law from Ky Supreme Court Today

Cabinet for Health and Family Services, el al v. Ivy, extent of child support and arrearages to be paid by non-custodial parent receiving only SSI benefits.

Keifer v. Keifer, oral findings are insufficient to support order modifying parenting time, written findings of fact are required.

Digests to folow.

For those who have been advocating the absence of discounts in divorce cases using the rationale of Brooks v. Brooks Furniture Mfgrs., Inc, 325 S.W. 3d 904 (Ky. App. 2010), take a look at Shawnee Telecom v. Brown, where the Ky Supreme Court today addresses the method to value dissenting shareholder's stock.

Finally, another non-family law case, University Medical Center, Inc. v. Beglin, et al, adresses the evidentiary issues of spoiliation and adverse inference.

S.B. v. M.C., Ky COA, Paternity, Jurisdiction, Child Custody

S.B. v. M.C.

No. 2009-CA-000966-ME

Published: Opinion Reversing and Remanding

County: Scott

S.B. appeals from the Scott Family Court’s dismissal of his action to establish paternity of L.R.C., a minor child born to M.C., for lack of subject matter jurisdiction.

M.C., a married woman, acknowledges she had an affair with S.B. in 2005 and that S.B., and not her husband, is the biological father of L.R.C., born in January, 2006.  Since L.R.C.’s birth, M.C. encouraged S.B.’s involvement in L.R.C.’s life and S.B. immediately began providing financial support.

In March, 2006, S.B. wanted a more formal division of time-sharing and filed a petition for paternity.  DNA tests confirm that S.B. is L.R.C.’s father by a probability of 99.9%.  M.C. filed two answers.  The first was dated April 7, 2006 and denied all allegations and requested attorney’s fees.  The second answer, dated April 12, 2006 admitted all the allegations in S.B.’s petition and stated that S.B. was L.R.C.’s father.

On April 17, 2006, M.C. filed a petition stating that she and S.B. are L.R.C.’s parents and asked the court to establish custody, award child support, and establish time-sharing.  In July, 2006, S.B. petitioned for temporary and permanent custody and support.

For the next two years, the parties returned to court numerous times on matters related to time-sharing, overnight visits, limiting S.B.’s use of alcohol, holidays, insurance and tax credits, and the court entered orders up to August, 2008.

On August 22, 2008 the family court sua sponte entered an order temporarily setting aside all previous orders while it considered the constitutionality of the paternity statutes.  S.B. filed a memorandum in support of a custody determination, but M.C. tendered a notice of dismissal and a supporting memorandum.  She argued that family court did not have jurisdiction to hear the paternity case and was without jurisdiction to establish custody.

In March, 2009, the family court issued an order denying S.B.’s motion for a custody order and granting M.C.’s motion to dismiss.  The court determined that it was without subject matter jurisdiction because KRS 406.180 limits jurisdiction to children born “out of wedlock,” and cited J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008).  After denial of his motion to alter or amend, S.B. appealed.

The Court of Appeals found that M.C.’s judicial admissions rebut the presumption that her husband was L.R.C.’s father, and in addition, they never challenged the results of diagnostic paternity tests.  Not until the family court determined the need to evaluate the constitutionality of the paternity statutes did M.C. change her mind and argued that she had always intended to raise L.R.C. as her husband’s child.

Because the presumption that L.R.C. was born during lawful wedlock has been rebutted, family court had jurisdiction to establish paternity and determine custody.  The matter was reversed and remanded to Scott Family Court for a determination of paternity and custody consistent with this Opinion.

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

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

N.B. v. C.H.

No. 2010-CA-002257-ME

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

County: Fayette

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

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

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

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

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

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

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

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

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

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

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

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

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

Anderson v. Johnson, Ky S. Ct., Specific Findings of Fact Required for Modification of Time Sharing

Anderson v. Johnson

No. 2010-SC-000646-DGE

Published: Reversing and Remanding

County: Franklin

Suzanne Anderson appeals from a Court of Appeals opinion affirming the Franklin Circuit Family Court’s order denying her motion for a change in timesharing of the parties’ minor child to allow her to relocate with the child.  She argues that the Family Court’s order cannot stand because no findings of fact were made.  The Appellee, Joseph Johnson, asserts that no findings of fact are required on a motion pursuant to CR 52.01 because he only filed a motion, not an action, and that Appellant failed to preserve any issues for appeal.

The parties were joint custodians and shared time with the child equally until April, 2009, when Anderson filed a motion to modify the timesharing schedule so she could relocate to Paducah.  After a hearing in May, 2009, the Family Court did not make specific findings of fact with separate conclusions of law, but found that relocation was not in the child’s best interest and denied the motion to modify timesharing.  The Court of Appeals affirmed the Family Court, relying on Burnett v. Burnett, 516 S.W.2d 330 (Ky. 1974), and holding that findings of fact were not necessary when the court denied a motion.

The legal standard for a modification decision is whether the relocation is in the best interests of the child.  In order to review a judge’s decision, it is necessary to know what facts were relied upon.

Timesharing set by the court on post-decree modification is final and appealable because it is a modification of an existing final order and because KRS 403.320(3) allows modification of a final order whenever it would serve the child’s best interests.  A visitation order modifying a final order becomes the new final order and is subject to appeal.

A motion for modification is a vehicle for reopening and rehearing some part of a final order and asks for adjudication on the merits after a hearing.  Family Courts must make findings of fact and conclusions of law and enter an appropriate judgment on modification motions.

The Supreme Court declined to follow Hollon v. Hollon, 623 S.W.2d 898 (Ky. 1981).  Because it misstates what the statutes require and does not adequately address the effect of CR 52 in its entirety, Hollon is overruled.

When the court omits a finding essential to the judgment, CR 52.04 requires a litigant to make a written request or motion to include a fact completing a judgment.  Although CR 52 embodies a burden on the court and the litigant, the court bears the broader burden because it has an express duty to make necessary findings of fact and conclusions of law.  CR 52.01 creates a general duty for the Trial Court to find facts and CR 52.04 applies only after the court has complied with its general duty.

In the case at bar, the court’s order included no findings of fact to support the conclusion that the move would not be in the child’s best interests, a violation of CR 52.01.  CR 52.04 is not involved here because the court made no findings, rather than good-faith but incomplete findings.

Prior decisions have indicated that Trial Courts do not need to make specific findings of fact and separate conclusions of law on modification motions.  When a motion results in a hearing dealing with substantive matters, findings of fact are required before a conclusion of law can be made.  These concerns are especially relevant because courts have continuing jurisdiction over children until majority or emancipation.  To the extent those cases differ from the holdings in this opinion, they are overruled.

In domestic relations cases, post-divorce motions concerning visitation and timesharing modifications are “actions tried upon the facts without a jury,” which require specific findings of fact and separate conclusions of law, followed by an appropriate judgment.  This case is remanded to the Franklin Circuit Family Court to make specific findings of fact and separate conclusions of law consistent with this opinion, followed by an appropriate judgment.

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

 

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

Melissa Ann Druen v. Paula Jean Miller

No. 2011-CA-000278-ME

Published: Opinion Dismissing

County: Jefferson 

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

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

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

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

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

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

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

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

 

Corns v. Corns, Ky COA, Child Custody Modification, Subject Matter Jurisdiction, Due Process, Continuance

Corns v. Corns

2010-CA-001911-ME

Published: Reversing and Remanding

County: Lewis

Gary Lee Corns appealed from an Order of Family Court, Lewis Circuit Court modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratliff).  The Court of Appeals reversed for lack of subject matter jurisdiction and denial of due process and remanded for further proceedings consistent with this Opinion.

The parties entered into a Separation Agreement on August 30, 2007 and their Divorce Decree was entered that day incorporating the Agreement.  They agreed to share joint legal custody of their daughter, Allison, and did not designate a primary residential custodian.

In 2008, the parties could not agree about where to send Allison to school and Taffy asked the court to decide what was in the child’s best interest.  The court treated the motion as a request to modify custody and permitted Taffy to file an amended motion and two affidavits.  In August, 2008 the court denied Taffy’s request to allow the child to attend school in Carter County rather than in Lewis County where she had attended preschool.  The court did not specifically rule on Taffy’s motion to modify custody and designate a primary residential custodian.

In 2009, the parties disagreed about Allison’s need for a tonsillectomy.  The court authorized Taffy to schedule the procedure, but allowed Gary to seek a second opinion.  If the independent exam produced a contrary medical indication, a hearing could be scheduled.  In November, 2009, the second medical examiner concluded the tonsillectomy was unnecessary so in July, 2010 Gary filed a motion requesting a hearing on the tonsillectomy issue and “shared parenting decision making.”  Taffy filed a verified response which, in part, agreed that she and Gary could no longer share joint custody.  Taffy also filed a motion for the court to hold Gary in contempt for failure to pay his share of medical expenses.

At the hearing on September 9, 2010, Gary appeared without counsel, and requested a continuance because he was not aware that custody was at issue.  His request was denied and the hearing was conducted, after which the court sustained Taffy’s motion for a directed verdict on the tonsillectomy issue.  On the custody matter, Taffy elicited testimony from Gary regarding his filing a grievance against one of the child’s physicians and contacting the FBI.  Witnesses from the Cabinet for Health & Family Services testified about Gary’s claims of fraud against Taffy and eleven reports about Taffy’s family, none of which were substantiated. The child’s teacher testified about Gary’s conduct when the child was mildly disciplined.  Taffy told the court that Allison had 14 throat infections between 2008 and 2010

The trial court’s order entered September 14, 2010 granted custody and decision-making authority to Taffy and set out the parenting schedule.  Gary’s motion to alter, amend or vacate the order argued that Gary did not receive notice of the hearing for custody modification and objecting to the tonsillectomy procedure.  Gary’s motion was denied and the appeal followed.

The Court of Appeals found no abuse of discretion in the trial court going forward and found Gary’s claim of lack of notice “disingenuous.”  There were procedural errors, however, which resulted in the trial court’s lack of subject matter jurisdiction.  Gary failed to file an affidavit, his motion was not verified, and Taffy’s attempt to join Gary’s motion was ineffectual because Gary’s motion was statutorily inadequate to raise the issue of custody modification.  It was error for the court to hear Taffy’s motion to change custody because it had not been scheduled for hearing and Gary had no notice of a hearing.

The orders of Lewis Circuit Court were reversed and remanded for proceedings consistent with this Opinion.

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

 

L.D. v. J.H., Ky COA, Grandparents’ Standing in Dependency Cases

L.D. v. J.H.

2010-CA-000792-ME

Published:  Affirming

County: Warren

After Child was removed from Mom’s custody by Cabinet because of environmental neglect and the fact that Mom’s husband was registered sex offender, Child was ultimately placed with paternal Grandparents.  One year later, Grandparents file motion for designation as de facto custodians and for permanent custody.  FC granted permanent custody to Grandparents.  Mom appealed.

Mom first argued that Grandparents lacked standing to commence custody action because they did not qualify as de facto custodians.  In order to qualify for de facto custodian status, one must provide primary care for a child for a requisite amount of time; but the time after a parent seeks custody of the child is not included.  Mom claimed that because she always wished to have Child in her care and because Cabinet’s permanency plan had a goal of returning Child to her care, that qualified as “commencing a legal proceeding,” sufficient to interrupt the one-year primary caregiver requirement of KRS 403.270.  CA disagreed that Mom’s wishes or the Cabinet’s permanency goal qualified as “commencing a legal proceeding.”  However, CA further found that Grandparents’ standing was conferred by KRS 620.027, which specifically confers to Grandparents the same standing given to parents, provided the child is residing with the Grandparents in a stable relationship.  CA held that substantial evidence supported FC’s finding that Grandparents provided a stable environment for Child and therefore had standing.

Mom next argued that because Grandparents agreed to Cabinet’s permanency plan with a stated goal of returning Child to Mom, Grandparents waived their right to seek permanent custody of Child.  CA found no precedent or authority for this claim, and further found that to so penalize Grandparents for cooperating with Cabinet would be detrimental to the Cabinet’s purpose. 

Next, Mom argued that FC did not give equal consideration to both parties in determining custody, and that FC refused to hear evidence about her fitness to have Child returned to her.  CA found that since Mom did not file a motion to regain custody of Child, the proceeding was rightfully limited to Grandparents’ motion for permanent custody, and that FC considered all relevant factors in its determination.    

Lastly, Mom argued that FC should have granted her request to speak to Child in chambers.  CA found that FC properly quashed subpoena based upon improper service (service upon Child instead of Guardian Ad Litem) as well as the Child’s therapist’s recommendations. 

FC affirmed.

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

Leach v. Harrison, Ky COA, Parent Fitness For Sole Custody As Against Non-Parent

Leach v. Harrison

No. 2009-CA-000622-ME on remand from Supreme Court of KY.

No. 2010-SC-000018-DGE

Published:  Opinion Affirming

County:  Estill

 

Father appealed order of trial court granting permanent sole custody of his three children to their maternal grandparents, the Appellees.  He argued that the Trial Court erred in finding him to be an unfit parent and by finding it was in the best interests of the children to be placed with the maternal grandparents.

 

The only question on appeal is father’s fitness to have sole custody of the children, because the mother stipulated to neglect in Madison Circuit Court and does not appeal.

 

As a result of more than eight investigations by the Department for Community Based Services related to the mother’s abuse and neglect of the children, the children were removed from the home.  The father was implicated for his failure to prevent the mother’s abuse and neglect.

 

In August, 2006 one child was placed with the maternal grandparents and one child was staying with the paternal grandparents.  After gaining temporary custody of these two children, the maternal grandparents filed petitions for permanent sole custody of both.  On the recommendation of the Domestic Relations Commissioner, the children were returned to the parents with orders prohibiting corporal punishment.  The maternal grandparents were awarded weekly visitation, but the parents failed to produce the children for 23 regularly scheduled visitations.

 

In August, 2007 the mother violated the court’s order and corporally punished one of the children and father failed to prevent it.  The two older children were placed with the maternal grandparents and the infant was placed with them in December.  Abuse allegations were substantiated against the mother and both parents were found to have neglected all three children.  Mother stipulated to neglect in Madison Family Court, and the court found that father also had neglected them.

 

After venue was transferred to Estill Circuit Court, the Domestic Relations Commissioner recommended awarding custody to father, visitation rights to maternal grandparents and eventual visitation rights to mother.  The grandparents filed exceptions.  The trial court subsequently rejected the DRC’s recommendation noting that the court feared “three potential homicides” if the children were returned to Dad because he seemed incapable of protecting them from their mother.

 

The father appealed and the CA determined that maternal grandparents lacked standing and the TC lacked subject matter jurisdiction due to repeal of KRS 403.420.  The Supreme Court accepted the case for discretionary review and held that standing can be waived in Kentucky and circuit courts have SJM over all child custody matters regardless of whether there is a statute specifically allowing such suit.  The Supreme Court remanded to Court of Appeals for a determination on the merits.

 

Father’s only argument on appeal is that TC’s finding that he was an unfit parent was unsupported by substantial evidence.  CA noted that since repeal of KRS 403.420, there is no longer a statute directing the standards to be applied by the TC, and consequently the court used the standards previously employed in cases of nonparents seeking custody.  Two ways for a nonparent having physical custody of a child to challenge a biological parent’s superior right is 1) a showing of unfitness sufficient to support involuntary termination or 2) parent’s voluntary waiver of their superior right to custody.

 

If nonparent shows by clear and convincing evidence that parent’s behavior could result in termination of parental rights, the TC may determine custody under a “best interest of the child” standard, with the nonparent on equal footing with parent.   The CA held that the TC made a finding that father was unfit and properly used the best interest standard in making its custody determination.  The CA found ample evidence presented at the hearing that father either allowed or failed to prevent mother’s abuse, as well as the adjudication of neglect by the Madison Family Court.

 

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

McGregor v. McGregor, Ky COA, Parenting Time Schedule, Imputation of Income in Child Support and Maintenance Awards, Division of Debt, Amount and Duration of Maintenance

McGregor v. McGregor

2009-CA-000614-MR and 2009-CA-000632-MR

Published:  Affirmed

County: Jefferson

Mom appealed from FC's order in dissolution action, arguing that FC abused its discretion by setting a shared-custody schedule for the children, by imputing income to her, by awarding an inadequate amount of child support and maintenance, and by its division of the parties’ debts. Dad cross-appealed, asserting that the amount and duration of maintenance was excessive.

 

Facts

After seven and a half years of marriage, Mom, a homemaker, filed a Petition for divorce from Dad, a pilot.  Subsequently, FC entered temporary orders granting joint custody of their 2 children as well as 50/50 parenting time schedule based around Dad’s work schedule.  FC also ordered Dad to pay Children’s expenses and household bills as well as temporary maintenance of $150 per week.

 

In its final order, FC continued parameters of temporary parenting time order; imputed income to Mom of $2,000 per month in its child support and maintenance calculation; deviated from the child support guidelines based on the shared parenting schedule and determined child support to be $275 per month; awarded Mom maintenance of $2,000 per month for seven years; and ordered Mom to pay the home equity Line of Credit on the marital residence and half of the mortgage payment until the home was sold, as well as be responsible for her personal credit cards.  

 

ANALYSIS:

Parenting Schedule

Due to Dad’s occupation, FC concluded that a rigid parenting schedule would prohibit him from having regular contact with the children.   Mom argued that this schedule was unworkable due to Dad’s failure to communicate with her and because Dad’s work schedule changes constantly and with short notice.  CA held that FC’s findings that shared parenting schedule was in Children’s best interests was supported by substantial evidence and thus not clearly erroneous.

 

Imputation of Income

FC imputed income to Mom in child support and maintenance awards  based on her work history prior to Children’s births as a graphic designer, in which she earned $28,000 per year, and her current status operating two concierge businesses from her home, in which she was earning $515 per month but hoped to someday earn $4,000 to $8,000 per month. 

 

CA noted that KRS allows a court to base child support on a parent's potential income if it determines that the parent is voluntarily unemployed or underemployed, without finding that the parent intended to avoid or reduce the child support obligation.  However, the maintenance statute does not explicitly address imputation of income to a voluntarily underemployed or unemployed spouse. CA held that, as a matter of first impression, maintenance statute implicitly allows FC to impute income to a voluntarily unemployed or underemployed spouse to determine both the spouse’s entitlement to maintenance and the amount and duration of maintenance.  Thus, FC committed no error in finding Mom to be capable of earning $2,000 per month and imputing such income to her in its child support and maintenance awards. 

 

Deviation from Child Support Guidelines

CA held that FC justified its deviation from child support guidelines based on the shared-parenting schedule; that the period of time during which children reside with each parent may be considered in determining child support; and a relatively equal division of physical custody may constitute valid grounds for deviating from the guidelines.  CA held that FC committed no error. 

 

Maintenance

Amount and duration of a maintenance award are matters within the sound discretion of FC.  As noted above, FC was authorized by statute to impute income to Mom.  Although CA noted that evidence may have supported Dad’s suggested award of maintenance in declining amounts, such a result was not required.  Because of Mom’s long gap in employment history while caring for Children, parties’ comfortable lifestyle during marriage, and Dad’s current earning ability, FC found seven years was reasonable duration for full amount of maintenance, and CA found no error.

 

Assignment of Debt

FC found that Mom took out the home equity line by forging Dad’s signature on the documents, and that funds were not used for home renovations as Mom testified; FC also found that Mom’s personal credit card debts were non-marital as Mom produced no evidence regarding what items she purchased.  CA found no error in finding these debts to be nonmarital.  FC also noted Mom’s ability to pay for home equity line with proceeds from sale of marital residence and thus found allocation of this debt to not be manifestly unfair. 

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

Draper v. Commonwealth, Ky COA, Paternity, Child Support and Joint Custody

Draper v. Commonwealth of Kentucky, et al, 2010-CA-000112-ME

and

Heacock v. Commonwealth of Kentucky, et al, 2010-CA-000185-ME

Published:   Reversing & Remanding

County:  Barren

 

        Shannon Heacock was married to Jesse Heacock who was injured in a boxing match in 1999 and lapsed into a coma leaving him with significant mental and physical impairments.  Although Shannon cared for Jesse in their home, she dated other men and in 2002, John Draper moved into the home.  In 2004, Shannon gave birth to A.N.H.

 

        In a paternity action filed against Shannon by the Barren County Attorney on behalf of Draper and A.N.H., genetic tests revealed a 99.995% probability that Draper was the father of A.N.H. and on September 4, 2007, entered a judgment determining Draper is A.N.H.’s father.  On January 4, 2008 the court entered a temporary support order requiring Draper to pay child support of $401.00 per month.

 

        On January 11, 2008 the court entered an agreed order granting temporary joint custody to Draper & Shannon.  Disputes about visitation continued and after both parties sought primary custody, a custodial evaluator was appointed.   There was an evidentiary hearing on February 25, 2009 and in her post-trial memorandum Shannon argued that, based on J.N.R. v. O’Reilly,264 S.W.3d 587 (Ky. 2008), the trial court lacked subject-matter jurisdiction.  The court reopened the evidentiary hearing and in light of O’Reilly, set aside all prior custody, visitation, and support orders as void ab initio, dismissed the paternity action for lack of SMJ and ordered Shannon to reimburse Draper $11,762 for child support paid under the temporary order.  These appeals followed.

 

        The CA conducted a lengthy analysis of O’Reilly, noting its limited precedential value due to the fragmented nature of the opinion, and then discussed the more recent case of Harrison v. Leach, 323 S.W. 3d 702 (Ky. 2010) when the Kentucky Supreme Court reviewed the distinction between standing and jurisdiction as applied to de facto custodians.

 

        CA concluded that KRS 406.011 sets forth standing requirements for a third party to assert paternity of a child born during the lawful wedlock of a husband and wife, but objection to standing may be waived if not timely raised.  The CA cited Harrison to explain that “subject-matter jurisdiction involves a court’s ability to hear a type of case while standing involves a party’s ability to bring a specific case. Id. at 705.

 

        The CA found that the family court division of Barren Circuit Court has jurisdiction over paternity petitions and that Shannon’s objection to standing was waived because it was not timely raised.  Since Shannon’s objection to Draper’s standing was waived, CA concluded TC erred by setting aside the paternity judgment as void and dismissing Draper’s petition.  After reinstating the paternity judgment, the issues raised in Shannon’s appeal concerning recoupment of child support are moot.

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

Discretionary Review Granted in Ky Timesharing Cases

The Kentucky Supreme Court accepted discretionary review this month of Anderson v. Johnson, (Ky COA opinion here), a denial of a motion to modify timesharing and of Keifer v. Keifer, (Ky COA opinion here), a modification of timesharing without best interests findings.

Caskey v. Caskey, Ky COA, Modification of Primary Residence

Caskey v. Caskey, 2010-CA-000667-ME

Issue:  Modification of Primary Residential Parent

Published:   Reversing and Remanding

County: Wolfe

After Child was attacked by a third party while in Mom’s care, Dad filed a motion for an Order modifying primary residential parent from Mom to him and changing fifty-fifty timesharing to standard visitation schedule.  TC denied the Order and Dad appealed pro se. 

 FACTS:

Per divorce settlement agreement, Mom and Dad shared joint custody of 6 year-old Child.  Parents equally divided parenting time but Mom was designated as primary residential parent.  Two and a half years later, Mom’s best friend was driving with Mom in the front seat of the car and Child and best friend’s boyfriend in the back seat.  Best friend’s boyfriend struck Child in the throat and attempted to choke her.  Mom did not take Child for medical treatment until almost midnight the following day.  When Dad picked up Child the next day, Child still had bruising on her chest and throat and hemorrhaging around her eyelids and mouth.  Best Friend’s Boyfriend was criminally charged for the assault, and Mom was charged criminally for failure to report the assault.  Dad filed a Motion for an Order modifying primary residential parent from Mom to him and changing fifty-fifty timesharing to standard visitation schedule (every other weekend plus one time during the week.)  At the hearing on the Motion, Mom pled the Fifth but testified that she did not learn of the attack until the day after it occurred. 

 TC noted that while Child “may not have been exemplarily monitored” by Mom, Child was not in danger in Mom’s care; TC therefore denied Dad’s motion.

ANALYSIS:

CA noted that the modification of designation of primary residential parent should be decided based on the best interests of the child.  CA held that the undisputed facts were more than sufficient to show that it was in Child’s best interests for Dad to be designated primary residential parent, with whom Child should live.  CA noted that a trial court’s determinations as to visitation and designation of primary residential parent will not be reversed unless they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case, but that this case is one of those rare exceptions. CA noted that TC’s referral of the case to the Cabinet for investigation and monitoring contradicted TC’s finding that Child was not endangered in Mom’s care. 

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

Harrison v. Leach, Ky. S. Ct., Waiver of Standing, Right of Non-Parent to Seek Custody Not Addressed

Harrison v. Leach, 2010-SC-000018-DGE

Published:  Vacating and Remanding

County:     Estill

      Because the issue of standing, which can be waived, is distinct from the issue of subject-matter jurisdiction, the Supreme Court held that an appellate court cannot, sua sponte, resolve an appeal based on a lack of standing before the trial court when no party had raised the issue of standing in the proceedings below.

     The Appellee, Christopher Leach, and his wife, Emily, had three children.  As a result of allegations of dependency, neglect or abuse, a family court awarded temporary physical custody to the Appellants, the maternal grandparents of the children.  When the grandparents petitioned a circuit court for full custody, the issue was referred to a domestic relations commissioner.  (The trial court where the custody action arose does not have a family court.)

    The parties stipulated that the grandparents did not qualify as de facto custodians.  Even though KRS 403.420 had been repealed, the DRC stated that “the right of a non-parent to initiate a custody action in Kentucky is set forth in KRS 403.420(4)(b).”  The DRC concluded that Emily abused the children and Christopher failed adequately to protect them, but found the evidence insufficient to establish that Christopher was an unfit parent.  The DRC recommended that Christopher be granted sole permanent custody of all three children.

     The Harrisons filed exceptions to the DRC report and the trial court ultimately rejected the DRC’s conclusions and awarded permanent sole custody of the children to the Harrisons.  Christopher appealed to the Court of Appeals.  Acting on its own motion, the Court of Appeals concluded that repeal of KRS 403.420 meant the Harrisons lacked standing to seek custody and the trial court lacked subject matter jurisdiction to determine the Harrisons’ custody action.  The Court of Appeals vacated the trial court’s order and remanded the case to the trial court with directions to dismiss the custody proceedings.

     The Supreme Court granted the Harrisons’ motion for discretionary review to determine whether an appellate court may act upon its own motion to decide an appeal based upon a purported lack of standing of one of the litigants.  SC concluded that standing is distinct from subject matter jurisdiction and a party may waive a right to contest standing.  Thus, an appellate court may not, on its own motion, raise the issue of standing of one of the parties to the appeal and adjudicate the appeal on grounds of standing when no party has questioned another party’s standing.

      “Standing” is defined as “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.”  Although the Harrisons clearly had an interest in the custody of the children, in the CA’s view, the repeal of KRS 403.420 left the Harrisons without a statutory mechanism to seek custody.  The CA believed that lack of standing caused the TC to lack subject matter jurisdiction.

      In its analysis, the SC explained that standing and lack of subject matter jurisdiction are not synonymous.  Subject matter jurisdiction involves a court’s ability to hear a type of case and standing involves a party’s ability to bring a specific case.

     The SC further concluded that Christopher had waived any issues related to standing; it was error for the CA to inject standing into the case.  SC held that any question regarding a lack of standing is waived if not timely pled.  Even if there is a genuine issue about whether a party lacks standing, the appellate court should not do what the parties have not done themselves.

     The CA decision was reversed and the matter was remanded to that court for a determination on the merits of Christopher’s appeal.

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

 

One Family Law Published Opinion From Ky Supreme Court This Month

Harrison v. Leach. Reversed and remanded to Court of Appeals, as it may not sua sponte raise issue of standing, as standing is waived if not timely pled. A determination of the effect, if any, of  the repeal of KRS 403.420 upon the ability of a nonparent who is not also a de facto custodian to file for custody must await a case in which that issue is directly presented. Digest to follow.

Carpenter-Moore v. Carpenter, Ky COA, Relocation, Law in Effect at Time of Decision

Carpenter-Moore v. Carpenter, et al, 2010-CA-000164-ME

Published:  Affirming

County:  Kenton

 

    Mother appealed from FC’s denial of her motion to relocate with the parties’ three minor children.

 

    Divorce proceedings were initiated in June, 2004.  In December, 2004 FC entered an order that the parties would share joint legal custody of their children.  A bifurcated divorce decree entered in August, 2005 dissolved the marriage but reserved all other issues, including custody, with all temporary orders to remain in effect pending resolution.  An agreed order entered March 21, 2007 stated that the parties would have joint legal custody, with mother the primary residential custodian.

 

    On November 1, 2007 mother filed a motion to relocate to Virginia with the children.  Father’s counsel stated his objection at the hearing on November 13, 2007.  The court set a hearing date for February 7, 2008 and appointed a guardian ad litem.

 

    Father filed a motion on January 30, 2008 for review of parenting time which was set to be heard the same date as the hearing on relocation.  The GAL filed her report on February 4, 2008 stating that she did not believe the relocation was in the best interest of the children.  On February 6, 2008 mother filed a motion for court to summarily grant her relocation because father had not complied with Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) and KRS 403.340 and 403.350.  This was also set to be heard on February 7, 2008.

 

    On February 7, 2008, father filed a motion for a change of custody with two affidavits.  At the hearing, the judge requested briefs on the legal issues and gave mother an opportunity to file a response to father’s motion for change of custody.

 

    Each party filed a memorandum and on June 2, 2008, the court held an unrecorded hearing in chambers.  On August 11, 2008, the judge issued findings of fact and conclusions of law that father had submitted sufficient evidence of emotional harm to the children, requiring a full evidentiary hearing under KRS 403.340(2).

 

    On October 23, 2008, the Kentucky Supreme Court rendered Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) which specifically addressed relocation issues and changing motion procedures previously mandated by Fenwick.

 

    Before the hearing on October 31, 2008 father filed a motion to plead in the alternative for modification of visitation/timesharing to name him the residential parent, citing Pennington.  The FC decided Pennington applied and that the best interests of the child standard applied to motions for relocation.  On November 13, 2008, mother filed a motion for sole custody with no affidavits.

 

    On January 6, 2009, the FC heard the remainder of the evidence and granted father’s oral motion to deny mother’s change of custody motion.  Both parties filed position statements at the request of the court.

 

    On March 30, 2009, FC issued an order denying mother’s motion to relocate and reserved all issues for future rulings.

 

    Mother filed an appeal of the March 30 decision which was dismissed as premature because of unresolved reserved issues.  The FC then entered an amended opinion and order on December 22, 2009, denying all other motions, maintaining the status quo, making no custody changes and stating the order was final and appealable.  Mother appealed from the March 30, 2009 and December 22, 2008 orders.

 

    CA did not find the three month period an unreasonable time in which to file father’s motion and cited Fowler v. Sowders, 151 S.W.3d 357 (Ky. App. 2004) which held that allegations of serious physical or emotional endangerment to a child were not required to support a  motion for a change of custody.

 

    The CA found no error in failing to follow Fenwick’s procedural mandates because Fenwick is not applicable to this case.

 

    Mother further argued that FC retroactively applied Pennington and erred by the retroactive application of new law to substantive rights.  CA disagreed distinguishing between statutes and regulations and Pennington, a judicial decision.  In cases involving new judicial precedent, the CA said “a court is to apply the law in effect at the time it renders its decision.”  Commonwealth v. Alexander, 5 S.W.3d 104, 106 (Ky. 1999).  Pennington did not affect mother’s substantive rights; it merely clarified statutory procedure for challenging a motion for relocation.  Furthermore, no decision or event had occurred to which Pennington could have been applied retroactively.  CA found that FC did not err in determining that Pennington was applicable.

 

    Mother argued that the FC did not find give appropriate weight to GAL’s report.  CA did not find that FC clearly erred when it found relocation was not in the best interest of the children.

 

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

 

 

Coleman v. Coleman, Ky COA, Child as Witness

Coleman v. Coleman, 2010-CA-000277-ME

Published:   Vacating and Remanding

County: Washington

 

Statute allowing judge to interview child regarding child’s wishes in custody proceedings is permissive rather than mandatory; FC therefore did not abuse its discretion in refusing to interview child.  However, FC erred in not allowing child to testify without first conducting a hearing regarding child’s competency to testify, as all persons are qualified to testify and presumed competent to do so unless trial court make a specific finding of incompetency. If child is found to be competent, trial court may maintain control over interrogation and protect witnesses from harassment and undue embarrassment under KRE 611(a)(3). 

 

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

Miller v. Harris, Ky COA, Child Custody

Miller v. Harris, 2009-CA-002330-ME & 2009-CA-002415-ME

Published: Affirming

County:  Marion

    Maternal grandmother of two minor children appealed circuit court’s award of custody of the children to great uncle and aunt, and from order denying her motion for a new trial but modifying the custody order to incorporate requested findings of fact.

    At the time of her death in an automobile accident in 2006, Phyllis Coffee had two minor children, a daughter, S.R.S. born in 2003, and a son, T.P.S. born in 2001.  The father of the children is an Indiana resident and has not asserted parental rights.

    S.R.S. was a “crack baby,” removed from her mother shortly after birth and spent her first year with relatives including Appellees.  Miller was not involved in child’s life.  S.R.S. was returned to her mother, but was removed again in September, 2005.  The Harrises were awarded temporary custody for about 8 months, during which time Miller did not attempt to contact the child.

    When the mother was killed, the Harrises petitioned Marion Circuit Court for custody of S.R.S.  T.P.S. was in someone else’s care.  In February, 2007, however, temporary custody of both children was awarded to the mother’s twin sister, Debra Penick, and 2 months later, she was awarded permanent custody.

    Penick, a single mother with two children of her own, was unable to care for the children.  Without court approval, she took the children to Indiana in July, 2008 and gave physical custody of them to her mother, the children’s maternal grandmother, Shelby Miller.  A court in Jennings, Indiana named Miller the children’s guardian.

    In August, 2008 the Harrises moved Marion Circuit Court to modify custody and set a visitation schedule.  The Marion Court ordered Penick to return the children to Campbellsville, Kentucky, enroll them in local schools, and make them available for visitation with the Harrises.  Another order was entered four days later stating Miller had refused to release the children and requesting assistance from Indiana law enforcement to return the children to Kentucky.  The Order stated that if Miller refused to cooperate, she would be arrested for custodial interference.

    On September 23, 2008, an Indiana court issued an Order on Miller’s motion to terminate the Harrises’ visitation.  The court acknowledged giving Miller guardianship of the children in July, 2008 but declined to exercise further jurisdiction.

    In November, 2008 Miller filed an intervening petition in Marion Circuit Court seeking custody.  In February, 2009 the Marion Court ordered weekly telephone contact with the Harrises and visitation one weekend each month.  In May, 2009, Miller was held in contempt for willfully violating this Order and an arrest warrant was issued.  The Harrises sought enforcement of their visitation rights in Marion Circuit Court and Miller sought termination of their visitation in Indiana.  The Indiana court denied Miller’s petition to terminate the Harrises visitation because of her failure to appear in Marion Circuit Court on May 4, 2009.

    On July 30, 2009 there was a custody hearing in Marion Circuit Court and on October 22, 2009 the court entered findings of fact, conclusions of law and judgment.  On Miller’s motion, the judgment was amended to incorporate additional findings of fact, but her motion for a new trial was denied.  Her appeal followed.

    When the choice of custodian is between non-parents, Kentucky courts seek the result that is in the child’s best interests.  The trial court considered all relevant factors, not just those enumerated in KRS 403.270(2), and concluded it was in the best interest of S.R.S. and T.P.S. to be in sole custody of Harrises with Miller having reasonable visitation.

    Miller was a 60 year old resident of public housing who has not held a job in two decades and relies on SSI, Medicaid and food stamps.  She is single, but has been married and divorced four times.  When she divorced the father of her four children, he received custody of all four.  She has a long history of substance abuse convictions, as well as a trafficking conviction and theft by deception.  She is in poor health and suffers from numerous ailments, including hypertension, diabetes and arthritis.  She repeatedly violated court orders with respect to the Harrises’ contact with the children and refused to return them to Kentucky when ordered to do so.

    The Harrises have been married over 50 years and own the home they have lived in 38 years.  They are both retired and draw about $2700 Social Security and pension benefits.  Neither has any criminal record and no history of illegal drug or alcohol use.

    The Court of Appeals found the trial court’s award of custody to the Harrises was fully supported by the record and there was no abuse of discretion.  Miller argued on appeal that the trial court should have interviewed the children, but the Court of appeals said such an interview was discretionary and found no abuse of discretion.  Miller asserted that the court gave insufficient weight to her testimony about the period the children lived with her in Indiana, but the Court of Appeals noted that the trial court is in the best position to weigh the credibility of witnesses.  Miller complained that the trial court considered her history of drug abuse.  The Court of Appeals noted that substance abuse was particularly relevant in this case because S.R.S. was born a crack baby, her mother had substance abuse issues and Miller had a record of criminal drug convictions.  The trial court did not err in considering her criminal record.

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

Anderson v. Johnson, Ky COA, Court’s Obligation to Make Findings Regarding Motion to Modify Timesharing

Anderson v. Johnson, 2009-CA-001261-ME

Published:   Affirming

County: Franklin

Mother filed a Motion to Modify Timesharing based on her intended relocation.  FC denied Mother’s motion but did not provide Findings of Fact.  Mother directly appealed that Order.  Father argued on appeal that Findings of Fact were not required on a post-decree motion to modify visitation.  CA agreed, but elaborated:

We draw from these cases … these three rules: (1) CR 52.01 does not require a trial court to make findings on post-decree motions whether they are granted or denied; (2) when a post-decree motion is granted, case law rather than CR 52.01 does require findings of fact and conclusions of law sufficient to address the standard contained in the statute pursuant to which the motion was brought; (3) when a post-decree motion is denied, neither CR 52.01 nor case law requires findings of fact or conclusions of law because implicit in the denial is the finding that the movant failed to produce sufficient proof to require an affirmative finding of the facts on which he relied. 

We emphasize that [caselaw does] not leave the unsuccessful post-decree movant without recourse.

We note first that [caselaw] does not deprive any party of the remedial provisions of CR 52. That is, even though CR 52.01 does not require findings on motions, nothing prevents a party from eliciting the trial court’s discretion to enter findings by bringing a motion pursuant to CR 52.02. After all, Kentucky appellate courts continue to require the unsuccessful respondent to a post-decree motion to preserve error by complying with CR 52.04.

Next, and more importantly, nothing prohibits an unsuccessful postdecree movant from appealing the denial of the motion … if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case.

In so finding, however, we do not intend to encourage minimalism in the drafting of orders. …Better practice [would be] for the trial court to make findings of fact...

CA also supported previous application to Supreme Court by another panel of CA to review and revise CR 52.01:

Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make findings of fact when ruling on a motion of any kind except as provided in CR 41.02 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review.

Affirmed.

Dissent filed by Chief Judge Taylor, maintaining that Findings are mandatory under CR 52.01 and failure to make them is reversible error; no CR 52.04 motion required to preserve the claim of error. 

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

Mullins v. Picklesimer Opinion Modification

Mullins v. Picklesimer, The substance of the opinion remains unchanged.  The Kentucky Supreme Court modified the opinion to clarify two points:

1.   that “physical custody” of KRS 403.800 to KRS 403.880 does not require exclusive care and supervision; rather, where one renders care and supervision concurrently with another or on an equal time-sharing basis, that person would have “physical custody” of a child per KRS 403.800-403.880; and

2.   that though KRS 403.822 primarily addresses a court’s jurisdiction to make an initial custody determination, the statute also implicitly identifies those parties who may bring an action seeking initial custody of a child and so also addresses standing in initial child custody determinations. 

 Here are the inserted paragraphs:

 Page 8:

"As used in KRS 403.800 to KRS 403.880, "physical custody" means "physical care and supervision of a child ." KRS 403.800(14) . This statutory definition of "physical custody" does not require exclusive care and exclusive supervision.  Thus a person like Mullins, who for the requisite period of time performed all the traditional parental responsibilities, concurrently with another or on an equal time sharing basis, had "physical custody" under the provisions of KRS 403.800 et. seq."  

Page 9:

"Although KRS 403.822 directly addresses the issue of the court's jurisdiction to make an initial custody determination, by identifying the adult persons who must be present in the forum state for jurisdiction to arise (parent or person acting as a parent), the statute implicitly identifies those persons as parties who may bring an action seeking initial custody of the child . It would make little sense to confer jurisdiction to this state when only "a person acting as a parent" resides here, and not at the same time confer standing upon that person to assert initial custody of the child . Otherwise, the state would have jurisdiction of the matter without any resident of the state having standing to bring an action to assert initial custody in the forum. That would clearly be an unreasonable interpretation of the statute, and is one which we believe our legislature did not intend. Moreover, it would make little sense for a person acting as a parent to have standing only if there is a jurisdictional dispute about which is the proper forum state, but not to have standing when there is not a jurisdictional dispute. Again, this would produce an unreasonable result."

Family Law From Ky Supreme Court Today

There are no new published family law opinions. However, the prior opinion in Mullins v. Picklesimer was modified and a new opinion substituted. We'll have to study the new one, compare it to the prior one, and will post a revised digest if there is anything significant. We'll let you know.

Kelsay v. Carson, Ky COA, Modification of Custody and Parenting Schedule

Kelsay v. Carson 2009-CA-002175-ME

Published:   Affirming

County: Boyle

 

Father appealed FC’s order making Mother primary residential parent of Child. 

 

FACTS:

Mother and Father, never married, had Child in 2000.  In 2004, FC entered Order awarding joint custody and designating Father as primary residential custodian.  In 2008, Mother moved FC to change custody, based on Father’s history of alcohol abuse, including 2 DUI’s in previous 18 months.  FC order joint custody to continue, but changed primary residential parent from Father to Mother.  Father appealed.

 

ANALYSIS:

CA noted that under Pennington v. Marcum, Mother was actually seeking change in parenting time, not a change in custody, and therefore falls under the purview of KRS § 403.320. This statute states that visitation/time-sharing may only be modified upon a proper showing that “modification would serve the best interests of the child.”  FC properly relied on Mother’s evidence that demonstrated that it was “in the best interest of the child” that Mother become the primary residential parent.

 

 

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

Cabinet for Health and Family Services v. L.J.P., M.J.P., and D.J.P: Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings

Cabinet for Health and Family Services v. L.J.P.,  M.J.P., and D.J.P, 2008-SC-000950-DGE  

Issue:  Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings

Published:   Reversing

County: KENTON

 

Cabinet appealed CA’s reversal of FC’s denial of paternal grandparents’ motion to intervene in termination of parental rights action, where CA held that the grandparents could intervene as a matter of right under CR 24.01.  SC held that, given that the proceeding before FC was for termination, and not adoption, grandparents' motion to intervene was correctly denied, and they had no statutory standing to proceed with an adoption.

 

FACTS:

Soon after Grandchild's birth, his birth parents lost custody of him in a dependency, neglect, and abuse action. Grandchild has since resided in foster care.  When Grandchild was about one, Cabinet filed a petition for involuntary termination of parental rights. About four months later, parents filed a petition to voluntarily terminate their parental rights, conditioned on Grandchild being placed for adoption with grandparents, and contemporaneously filed moved to intervene, claiming the filing of the Voluntary Termination Petition gave them standing to do so.  FC denied their motion to intervene, finding the voluntary termination petition to be invalid because the involuntary petition was filed first. CA found that grandparents could intervene as a matter of right based on the “elevated status” given to grandparents in custody determinations

 

ANALYSIS:

A. Timeliness

SC held that FC incorrectly believed that the effect of the Cabinet’s previously filed petition for involuntary termination was to cause the parents to lose the right to be free from state interference in deciding who shall have custody of Grandchild.  Thus, FC believed Voluntary Petition was untimely and could not give grandparents standing.  SC held that Involuntary Petition was merely pending as the parents’ rights were not affected until an order issued terminating their rights.  The fact that they did file their petition before their parental rights were terminated makes their voluntary petition timely.  This alone, however, did not give grandparents standing. 

 

B. The Substance of the Parents' Petition

While the parents clearly could voluntarily terminate their parental rights, even in an involuntary termination proceeding, the real question is whether given the status of their case, they could go further and consent to adoption in a voluntary termination proceeding.  Obtaining the consent of parents who retain their parental rights is but the first step of a consent adoption.  Pursuant to KRS 199 .470(3), grandparents could not petition to adopt Grandchild unless the Grandchild had been placed with them by the Cabinet or until he had resided with them for at least ninety (90) days immediately prior to the filing of the adoption petition.  In this case, Grandchild had never resided with Grandparents.  The 90 day residence requirement is a jurisdictional prerequisite so they could not adopt him at that time.  Further, SC found voluntary termination petition’s conditional language would have required FC to place Grandchild for adoption with Grandparents, which FC found to be an improper attempt to make an endrun around the requirements of the adoption statute. If the petition had been a proper petition for consent adoption, then Grandparents would have had to invoke FC's jurisdiction to proceed, and they could not meet the statutory grounds to do so. Nonparental relatives or potential custodians such as Grandparents are not mentioned or considered in the termination statutes, and thus it cannot be said that a statute confers an unconditional right to intervene.  Furthermore, to the extent that Grandparents' interest is in receiving custody post-termination, it would not be a "present substantial interest" but merely "an expectancy or contingent interest," and thus insufficient to warrant their intervention as a matter of right. FC is statutorily obligated, upon issuing an order terminating parental rights, to "vest care and custody of the child in such person, agency, or cabinet as FC believes best qualified." Thus, Grandparents would be entitled to custody only if the court finds they are the "best qualified" among all potential custodians, something which is purely speculative at this point, especially since parental rights have not been terminated.

 

CA reversed, and FC order reinstated.

 

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

 

 

From Guest Blogger Bonnie Brown: DEVELOPMENTS IN INTERNATIONALIZATION OF FAMILY LAW: U.S. SUPREME COURT ADDRESSES THE TRAGEDY OF INTERNATIONAL CHILD ABDUCTION

    Although family mobility has been global for decades, the United States Supreme Court, for the first time,[1] has interpreted a provision of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States is a contracting state.  The treaty’s full text can be found at

       http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24.

BACKGROUND

    The Hague Convention is implemented in the US by the International Child Abduction Remedies Act (ICARA), 42 USC §11601 et seq.  It determines which forum will decide a custody dispute – not the custody dispute itself.  See, Friedrich v. Friedrich, 78 F.3d 1060 (6^th Cir. 1996).  With authority to hear Hague cases in every state and federal jurisdiction, there are literally thousands of Courts that could be presented with a case. It is no wonder a Hague issue is only now being decided by this country’s highest Court.

    In general, a parent seeking return of a child must show that the child was abducted or wrongfully retained in violation of that parent’s custody rights, which depend upon the laws of the state from which the child was removed.  That country must have been the child’s habitual residence.  The parent must act within one year.  The Convention applies to children under age sixteen.  The Court may refuse to return the child if the parent seeking return agreed to the removal or retention or if there is a grave risk that the child’s return would lead to physical or psychological harm or if the country to which return is sought violates fundamental principles relating to the protection of human rights and fundamental freedoms.[2]

 Kentucky construed Hague’s return provisions over a decade ago. In Harsacky v. Harsacky, 930 S.W.2d 410 (Ky.App. 1996), the Court of Appeals refused to order return of American born children to a mother in Finland because she had failed to prove that the children were wrongfully abducted or retained in the United States, and that Finland was not the children’s habitual residence.  Two years later, the Kentucky Court of Appeals ordered a child returned to her father in Greece from which the mother had wrongfully removed her child.  Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. App. 1999).   

THE ABBOTT FAMILY

Resolving a split among the Circuits, Abbott v. Abbott, 560 U.S. ____ (2010) holds that the right to veto a child’s removal from the country constitutes a custodial right enabling its violation to invoke the return remedy set forth in the Hague Convention.  In so doing, the United States joins the majority of nations in this interpretation, though not necessarily the majority of Circuits. Justice Kennedy’s majority Opinion was joined by Justices Roberts, Scalia, Ginsburg, Alito, and Sotomayor.  The decision is consistent with Kentucky law, which associates custody with decision making, rather than physical control of the child.  KRS 403.330(1).

    In Abbott, the father was British and mother American.  They married in 1992, and their son was born in 1995.  The family moved to Chile in 2002, but separated in 2003.  A Court in Chile granted the mother what most in the United States would label as sole custody while granting the father visitation rights.  However, under the laws of Chile,  parents with the type of visitation rights granted the father automatically have a ne exeat (no exit) right, namely a right to consent before the mother could take the child out of Chile. 

    The father obtained a British passport for the son, and the mother obtained an Order that the father be prohibited from taking the boy out of Chile.  In 2005, while the proceedings were pending in the Chilean Court, the mother herself removed the child without the father’s permission.  A private investigator found the child in Texas, and in 2006, the mother filed for divorce in Texas.  She further sought to eliminate the father’s veto authority and to impose supervised visitation for the father in Texas.  The Texas Court granted the father visitation so long as he remained in Texas.  As reported in the Opinion, that litigation is not concluded. 

    .

    The father began Hague proceedings in May 2006.  The Federal District Court determined that the father’s ne exeat rights did not constitute a right of custody under the Hague Convention and denied the return remedy.  The Fifth Circuit agreed in 2008.  Interestingly, the Fifth Circuit relied on a Second Circuit case, Croll v. Croll, 229 F.3d 133 (2000), holding that ne exeat rights were not custody rights under the Convention.  A dissenting Opinion was written by then-Judge Sotomayor who considered ne exeat rights to constitute a right of custody because it allowed decision-making authority regarding a child’s international relocation.  Justice Sotomayor’s consistency resulted in her joining  the majority in the Abbott case.  

    Justice Kennedy analyzed that the ne exeat right indeed constitutes a right relating to determination of the child’s residence.  The father’s rights affected the child’s language, identity, culture, and traditions.  The right also enabled the father to control or prevent disruptions in his visitation by hypothetically conditioning his consent to relocation in a country where the father could obtain employment, thus allowing him to have continued contact with the child.

    Justice Stevens filed a dissenting Opinion joined by Justices Thomas and Breyer.  The dissent disagreed that the ne exeat rights constituted a right of custody invoking the return remedy under the Hague Convention.  Justice Stevens analyzed it as being closer to a right of access, which does not require the return remedy, but rather cooperation of the contracting state to allow that access to the extent possible.  Veto power based on Chilean law, the dissent reasoned, is not synonymous with the affirmative authority to establish in which country the child lives. Thus, the veto power would not “transform” the father into a custodian.

WHAT HAGUE CONVENTION CAN AND CANNOT ACCOMPLISH

The decision has been criticized by women’s rights advocates for domestic violence survivors who are concerned that it would burden the ability of women to flee abusive situations.[3]  That can certainly be a disturbing consequence of the Hague Convention’s focus on forum rather than results. Perhaps this issue could be more fully developed in construing the defenses and exceptions. Yet, on a positive note, this decision could give momentum to the decisions in other countries in which children abducted from this country are found.

    The ultimate tragedy is that this dispute began in 2005, when the child was approximately 10 years old.  He is now 15 years of age and nearly grown. Successful mediations involving international parental child abduction have been reported.  This solution should be considered by any attorney assisting a parent in a Hague Convention case and  that case evaluated for its ability to benefit from this alternative process.

Respectfully submitted.

    Bonnie M. Brown

---

[1] Bureau of National Affairs, Inc., Family Law Reporter News Archive, 5/18/2010.

[2] See Graham/Keller, Kentucky Practice, Domestic Relations Law, §14:48.

[3] See B.N.A. Archive, supra.

Discretionary Review Granted in Harrison v. Leach

Here is our digest and link to the Kentucky Court of Appeals opinion which addresses the standing of a third party who is not a defacto custodian following enactment of the UCCJEA.

U.S. Supreme Court Decides Hague Convention Case of Abbott v. Abbott

If a custodial parent violates an order not to remove a child from the country, the non-custodial parent may use the Hague Convention to have the child returned. Abbott v. Abbott, decided May 17, 2010 and online here

John Crouch at The Family Law News Blog says in this post, "This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations."

Chappell v. Chappell, Interview of Child in Custody Proceeding, KY COA

Raymond Keith Chappell v. Brenda Marie Chappell, 2009-CA-000634-MR

Issues:  Whether Trial Court is required to interview child in chambers

to ascertain child’s preference as to his custodian and visitation.

Published:  Affirmed.

County:  Allen

 

Parties were married in 1994 and had three children.  They separated in January, 2007 and trial court entered temporary joint custody order designating Mother as primary residential custodian.  Decree was entered in October, 2007 and hearings were conducted in September, October and November, 2008.  In January, 2009, court issued findings of fact, conclusions of law and judgment awarding parties joint custody with Mother primary residential custodian.

 

Father appealed, contending TC abused its discretion and deprived him of a fair hearing before reaching determination of custody.  CA held that KRS 403.290(1) provides that the court “may interview” a child in chambers regarding custody and visitation, the language of the statute is permissive, not mandatory.  Thus, the court’s decision is discretionary.

 

Father further contended that the TC erred by failing to designate him as primary residential custodian.  Trial Court found that father’s witnesses exaggerated their criticisms of Mother’s parenting skills and home environment and failed to present any reliable evidence to support his claim that children were endangered when in care of Mother.

 

After finding that Mother had been primarily responsible for child-rearing, children were doing well in private, parochial school, and both parents maintained suitable homes, the TC concluded it was in the best interest of children for Mother to be designated as primary residential custodian and CA found no abuse of Trial Court’s considerable discretion.

 

Finally, father contended the Trial Court erred in its distribution of marital property because it relied on an appraisal that father believed inflated the value of the marital residence.  The Court of Appeals reviewed the appraisal and found no error that had a material impact on the fair market value because it utilized a comparison approach, not a cost approach.

 

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

S.R., Mother v. J.N., Father and D.N., a Minor Child, Ky COA

S.R., Mother v. J.N., Father and D.N., a Minor Child, 2009 CA-001621-ME  

Issues:  Family Court must determine truth or falsity of all allegations in a complaint and consider only the evidence in the record to reach its conclusions.

Published:   Vacating and Remanding

County:   Marshall

 

S.R. (Mother) and J.N. (Father) were married in 2005 and their child, D.N. (minor child) was born later that year.  In 2006, divorce proceedings were initiated and after two contentious years, divorce was granted and mother was awarded custody of D.N.  Mother remarried and had another child in 2008.  When Mother’s new marriage deteriorated, her husband (Rambo) contacted Father and alleged Mother’s conduct was putting D.N. at risk.  Based on these allegations and Rambo’s affidavit, Father filed an Emergency Custody Petition and was awarded emergency custody on April 24, 2009.  An adjudication hearing was held on July 21.

 

Father’s complaint alleged that after an all-night drinking episode, Mother was too intoxicated to take D.N. to school and that she did not take the medications prescribed for her bipolar disorder.  Attached to the petition was Rambo’s affidavit alleging mother’s misconduct, Father and Rambo both testified at the adjudication hearing.

 

Mother and two witnesses also testified at the hearing and disputed the allegations of Father and Rambo.  Nevertheless, the Family Court ruled D.N. was an abused or neglected child and placed him in Father’s care.

 

Mother appealed asserting the Family Court failed to determine the truth or falsity of the allegations in the complaint, made erroneous findings of fact regarding Rambo’s testimony, and erroneously concluding D.N. was neglected, especially in light of testimony that he was routinely cared for by competent caregivers.

 

When a court conducts an adjudicatory hearing following temporary removal of a child from a custodian, KRS 620.100 requires the adjudication shall determine the truth or falsity of the allegations in the complaint with the burden of proof on complainant.  Findings of fact must be supported by substantial evidence in the record.

 

The Family Court determined the truth or falsity of only 2 of the 17 allegations in the petition.  The conclusion that D.N. was abused or neglected was not supported by substantial evidence.  The Family Court also went beyond allegations in the complaint and the testimony at the hearing and referred to evidence from prior proceedings and the court’s own knowledge acquired in the course of those prior actions; none of which was introduced into evidence at the adjudicatory hearing.  While a court may take judicial notice of its findings of fact in a prior case, it is improper to consider the evidence from the prior action.

 

CA held that Family Court’s finding that D.N. was abused or neglected was erroneous as a matter of law because the court did not determine the truth or falsity of the allegations in the complaint and relied on information outside the record and as a result the conclusion that D.N. is abused or neglected is not based on substantial evidence.

 

CA vacated the Order finding D.N. an abused or neglected child and remanded to Family Court for entry of an order which determines the truth or falsity of all the allegations in the complaint and based only on the record in this case.

 

 

 

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

 

Kerr v. Osborne, Substanial Evidence To Support Custody, Reasonable Time To Vacate Agreed Order

Kerr v. Osborne 2009-CA-000351-ME   

Issue:  Substantial Evidence To Support Custody, Reasonable Time In Which To Vacate Order

Published:   Vacating and Remanding

County: Johnson

 

Mom appealed from FC Order denying her motion to vacate Agreed Order granting sole custody to Dad and giving her only supervised weekend visitation with Child, arguing substantive and procedural errors. 

 

FACTS:

When Child of Mom and Dad was 3 months old, Mom signed an Agreed Order giving Dad sole custody of Child and giving Mom only supervised weekend visitation until she had completed drug and alcohol program.  Per Mom, she signed the Agreed Order the morning after a night of binge-drinking, based on the persuasion of Dad and Dad’s sister/lawyer, who was also a close friend of Mom’s.  Mom also claimed she had not read the Order and believed only that it would allow Dad to care for Child while she was in rehab.  Dad claimed that Mom had not been drinking the night before and that he watched her read and sign the Agreed Order.  Neither disputed that Mom signed the Agreed Order without independent counsel.  The Agreed Order was signed the same day and mailed to all attorneys of record and Mom.  The following day, Dad petitioned FC for custody.  Petition did not provide information regarding Child’s birthplace or whereabouts and stated that Mom’s address was unknown.  Mom moved to vacate the Agreed Order 4 months later, citing undue influence; that it was statutorily deficient as it lacked the required findings of fact, conclusions of law and determination of Child’s best interests; that it was mailed to her 3 days before entry into the record; and that it lacked finality language.  She also contended that the petition was statutorily deficient; was not served upon her; that she did not answer it; that she did not waive her appearance and no appearance was entered on her behalf; that no evidence was taken; and no affidavit was submitted upon which permanent custody could be granted.  Mom moved for immediate visitation and for temporary custody.  Dad responded to Mom’s motions, stating that Mom had been following terms of Agreed Order for 4 months and only now wanted to change the terms because she had completed rehab, but she could not meet jurisdictional requirements for custody modification.  Dad argued that Mom was outside of 10 day window for filing Motion to Vacate and that Agreed Order was final when time for appeal expired, so FC lacked jurisdiction to vacate it.  FC agreed with Dad and denied Mom’s Motions, finding that 4 months was an unreasonable time to move to vacate because Mom would not have been hung over and without legal representation for the entire span of that time. 

 

ANALYSIS:

CA held FC acted arbitrarily in finding four months to be an unreasonable time for Mom to move to set aside the agreed order and that FC misread CR 60.02 as imposing a one-year “absolute cutoff” for the filing of a motion to vacate.  CA disagreed, finding that for filing a CR 60.02 motion alleging: (1) fraud; (2) that a judgment is void, satisfied, released or discharged; or (3) any extraordinary reason warranting relief, there is precedent for concluding a delay of only four months was not unreasonable.  CA found that while it was debatable whether Mom acted under the disability of alcohol when signing the Agreed Order, there was no dispute that she acted without the advice of independent legal counsel and at the urging of individuals who had a personal stake in the outcome, and that she did not enter rehab until a month after signing the agreed order and another of the four months was spent in a Virginia treatment facility for alcohol dependence. Under these circumstances, four months was not an unreasonable amount of time to move to vacate the order. 

Although the agreed order gave FC some reason to believe Mom was struggling with drugs or alcohol, it established nothing about Dad and his ability to parent, so FC could not, and did not, make a finding that custody to Dad was in Child’s best interests.  Because no custody petition had been filed at the time the court approved and signed the agreed order giving custody to Dad, FC could not, and did not, determine it had jurisdiction to award custody.  CA also found that FC’s award of custody was not supported by substantial evidence, as only conflicting affidavits filed by the parents were in the record, and FC therefore abused it discretion in awarding custody to Dad. 

 

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

 

 

Mullins v. Picklesimer, Ky. S. Ct., Waiver Of Biological Parent's Superior Right To Child Custody

Mullins v. Picklesimer, 2008-SC-000484-DGE

Issue:  Same-sex partnership custody case:  CR 60.02 relief; standing and waiver

Published:   Affirming in Part and Reversing in Part

County: Garrard

 

SC reviewed same-sex ex-partner’s standing to pursue joint custody of biological child of her former partner and former partner’s alleged waiver of superior right to custody of child.  

 

FACTS:

Picklesimer and Mullins were engaged in a 5 year lesbian relationship, during which time they lived together and decided to parent a child together.  The parties agreed that Picklesimer would be artificially inseminated.  They worked together to find a sperm donor that had characteristics closest to Mullins.  Mullins was present for the insemination of Picklesimer.  Mullins and her mother were present for the birth. The parties jointly made the decision regarding the child's surname, and the last name Picklesimer-Mullins was listed on the birth certificate.  Their child was born in 2005, and their relationship ended in 2006.  It is undisputed that both parties provided for the care and financial support of Child. Before the parties broke up, they entered an agreed order and judgment that established Mullins as a de facto custodian of the child and provided that the parties would share joint custody.  After the parties separated in February 2006 and until their relationship disintegrated even further in September 2006, the parties shared equal parenting time with the child.  Some time in September 2006, Picklesimer refused to allow Mullins to have any further contact with Child unless Mullins visited him at Picklesimer's home.  

 

PROCEDURAL HISTORY:

Picklesimer appealed a TC judgment that awarded joint custody of her minor son to Mullins.  Picklesimer argued to CA that the TC lacked jurisdiction and venue to enter custody orders, that Mullins lacked standing, and the TC erred in holding Picklesimer waived her superior right to custody.  On cross appeal, Mullins argued that the TC erred in invalidating the agreed judgment of joint custody entered by the two parties.  CA rejected Picklesimer's argument that TC lacked jurisdiction and venue. CA also rejected Mullins’ argument that TC erred in setting aside the agreed judgment of custody, agreeing with TC that the agreed judgment was invalid because Mullins did not qualify as a de facto custodian under KRS 403.270. However, CA reversed TC's finding that Picklesimer waived her superior right to custody of Child. Because CA adjudged that Mullins was not Child's de facto custodian and Picklesimer had not waived her superior right to custody, CA concluded that Mullins did not have standing to pursue custody of Child.

 

SC HOLDING AND ANALYSIS:

“We adjudge that the trial court properly granted CR 60 .02 relief regarding the parties' agreed judgment of custody on grounds that it was based on falsified evidence and fraud. We further adjudge that the trial court properly found that Appellant had standing to seek custody of the child and that the natural mother waived her superior right to sole custody of the child in favor of a joint custody arrangement with Appellant. Hence, we affirm the Court of Appeals in part as to the parties' agreed judgment of custody, and reverse in part as to its finding of no waiver and reinstate the judgment of the Garrard Circuit Court.”

 

STANDING

Prior to 2004, standing to bring a custody action was limited by KRS 403.240 to a parent, a de facto custodian of the child, or a person other than a parent only if the child is not in the physical custody of one of the parents.  However, the since-adopted UCCJEA grants standing to a nonparent who, acting as parent to the child, has physical custody of the child.  It therefore permits standing in a shared custody co-parenting situation, since there is no longer a requirement of physical custody to the exclusion of the parent, if the nonparent can meet one of the requirements of subsection (b) of KRS 403.800(13) - she has been awarded legal custody or claims a right to legal custody under Kentucky law.

 

In the present case, the child was conceived through artificial insemination and brought into the world upon agreement of the parties to parent the child together. It was undisputed that Mullins physically cared for and supervised Child from birth throughout the period the parties were together and for the five months thereafter when they shared custody. And she did so in the capacity of a parent, which is evidenced by her living as a family with the child and Picklesimer, the child calling her "momma," the child's hyphenated surname (Picklesimer-Mullins), the parties' attempt to confer parental rights on Mullins with the agreed judgment of custody, and Picklesimer continuing to allow Mullins to co-parent to the child for some five months after the parties' relationship dissolved. This would distinguish the nonparent acting as a parent to the child from a grandparent, a babysitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the capacity of another parent. Further, Mullins claimed a right to legal custody of Child under both the agreed judgment of custody and pursuant to a waiver theory, satisfying the requirement of KRS 403.800(13)(b). Accordingly, we adjudge that Mullins has standing in this case to seek custody of Child.

 

AGREED JUDGMENT OF CUSTODY

SC agreed with CS that the assertion in the agreed judgment that Mullins was the child's primary caregiver and primary financial provider constituted both falsified evidence and fraud affecting the proceedings warranting relief from the judgment.

SC did not agree with Mullins that Picklesimer was not entitled to relief under CR 60.02 because she was a party to the fraud and thus had unclean hands. SC noted that the doctrine will not be applied to all misconduct, as when "the plaintiff has engaged in conduct less offensive than that of the defendant." While the evidence established that Picklesimer signed the agreement, voluntarily and clearly intended to confer custody rights on Mullins, it was Mullins' idea to have the agreed judgment drawn up by her attorney, and Picklesimer signed it without the benefit of her own counsel. Moreover, because the agreed judgment pertained to child custody, the equity of the parties was subordinate to the welfare of the child, and the judgment could not be permitted to stand if based on fraud or falsified evidence.

 

WAIVER

Mullins argued that CA erred in reversing TC’s finding that Picklesimer waived her superior right to custody. She maintains that CA substituted its findings for TC’s and misinterpreted the law relating to waiver.  Because Mullins could not qualify as the child's de facto custodian, the only way Mullins could establish custody rights to Child is if Picklesimer waived her superior custody rights.  Proof of waiver must be clear and convincing. Statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.  These cases should be viewed on a case-by-case basis and no specific set of factors must be present in order to find there has been a waiver.  There can be a waiver of some part of custody rights demonstrating intent to co-parent a child with a nonparent. In this case, Picklesimer waived her superior right to sole custody of the child in favor of a joint custody arrangement with Mullins.  Specifically, Picklesimer waived her right to be the sole decision-maker regarding her child and the right to sole physical possession of the child. This is an absolute waiver of part of her superior custody rights as the natural parent of the child.  The recognition of the applicability of the doctrine of waiver in a child custody situation is legally justified as well as necessary in order to prevent the harm that inevitably results from the destruction of the bond that develops between the child and the nonparent who has raised the child as his or her own. The bond between a child and a co-parenting partner who is looked upon as another parent by the child cannot be said to be any less than the bond that develops between the child and a nonparent to whom the parent has relinquished full custody.

Picklesimer argued that because the agreement was declared invalid due to Mullins not having de facto custody status it cannot be considered by the court as evidence of waiver. SC disagreed. Even though the agreement was properly found to be invalid, it was relevant to show Picklesimer's intent to confer parental rights to Child on Mullins.

 

CUNNINGHAM, J., CONCURRING IN PARTAND DISSENTING IN PART:

KRS 405.020 and KRS 403.270, our custody statutes, provide standing in child custody claims only for parents and de facto custodians. Under the statutory scheme passed by our legislature, Appellant had neither standing nor the right to make a custody claim in this case. Neither did she have a claim under the long standing judicially imposed principle of waiver. Surrender of custody and separation are the critical lynchpins of the waiver concept. By not requiring separation from parent as a requirement of waiver, the majority introduces a new principle in custody cases which amounts to a partial waiver. This judicial engineering undermines the statutory protection of the parent and opens the door wide for all third parties who can show shared participation in child rearing. This new found rule of law will - in an age of working parents and shared nurturing - equally fit as many grandparents, uncles, aunts, neighbors, and even babysitters, as it does Appellant and others who may "co-parent" a child. We cannot, by judicial edict, just open wide the door and wave everyone in who wishes to parent a child .  The Due Process clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.  

 

SCOTT, J., CONCURRING IN PART AND DISSENTING IN PART:

The new of theory of “waiver”— now "unhinged" from the former requirement of the child's significant physical separation from the parent—will ultimately enable step-parents to contest for custody of their step-children, even in short term marriages.

 

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

Kentucky Supreme Court Publishes Two Family Law Opinions Today

A deeply divided court, in Mullins v. Picklesimer, holds that mother waived her superior right of custody, thus permitting her same sex partner to have joint custody. The dissents worry that this "new found rule of law" will pave the way for grandparents, step-parents and other non-parents to seek custody.

Commonwealth, Cabinet for Health & Family Services, et al v. T.N.H, et al  concerns termination of parental rights of minor in CHFC custody. 

Digests of both to follow.

Gertler v. Gertler, KY COA, Sole Custody, Classification Of Gifts

 

Gertler v. Gertler, 2008-CA-001367

Issue:  Custody, gifts as marital or non-marital property

Published:   Affirming

County: Casey

 

Dad appealed from TC’s decree of dissolution, arguing that TC abused its discretion by awarding sole custody of parties’ four children to Mom and that TC erred in its determination that cash gifts from Dad’s parents during the marriage were marital property.

 

FACTS:

Mom and Dad married in 1996 and had four children.  The family followed an Amish-like lifestyle, using no modern conveniences, dressing in plain clothes that completely covered the body (including the head for the females), refusing to seek medical care, and adhering to the rule that the father made all decisions for the family.  During their marriage, Dad’s parents made three separate cash gifts, totaling $66,000, each time for the parties to purchase a new home.  In December 2007, Mom left Dad and filed Petition for Dissolution and Mom ultimately sought sole custody of children citing the parties’ inability to make joint decisions for the children due to Dad’s disbelief that Mom should be able to participate in those decisions.  After trial, TC ordered that Mom would have sole custody and found the cash gifts to be marital property. 

 

ANALYSIS:

Cash gifts:

The party claiming nonmarital property has the burden of proving the nonmarital character of the property.  Property received by gift during the marriage may be nonmarital if it is proven that the property was intended by the donor as a gift to only one of the parties.  Per O’Neill, there are 4 factors to be considered in determining whether a gift was intended for one or for both parties:  the donor’s source of the funds; the intent of the donor at the time as to the intended use of the property; the status of the marriage relationship at the time of transfer; and whether the parties had agreed that the gift would be nonmarital.  The only contested factor here related to the donor’s intent.  At trial, both Dad and his parents testified that the cash gifts were meant for him alone, while Mom testified that they were meant for the family.  CA noted that while TC was to consider testimony regarding donor’s intent, the intent can also be inferred from surrounding circumstances and other words and actions of the donor, as well as conduct of the parties.  Other than the testimony of Dad and his parents, all other evidence pointed to the cash gifts as being intended for the family.  TC found that Dad failed to meet his burden of proof on this issue and CA found that TC did not clearly err in this decision. 

Custody:

Dad argued that per Squires, TC could not require parties to have a “cooperative spirit” in order to grant joint custody, so awarding sole custody to Mom because of his failure of cooperation with her in decision-making was an abuse of discretion.  CA held that TC correctly looked to the future to predict whether parties would be able to co-parent and appropriately made its award on that basis.   

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

 

Walsh-Stender v. Walsh, Ky COA, UCCJEA Jurisdiction

Walsh-Stender v. Walsh, __ S.W.3d __ (Ky. App. 2009)

   The parties divorced in Tennessee and the decree included a permanent parenting plan regarding the custody of the parties’ minor son.  The Tennessee court modified the parenting plan in 2004, and shortly thereafter father and son moved to Kentucky.  Even though the son lived in Kentucky, he still visited his mother in Tennessee.  In 2008, father filed a petition to modify custody in Kentucky.  Father sought sole custody with mother having limited visitation.  After a hearing, the Kentucky court granted father’s motion.  Mother, who represented herself, filed a CR 60.02 motion months later.  The Kentucky court denied the motion and mother appealed. 

The COA never reached the merits of mother’s CR 60.02 motion.  Instead, it vacated the trial court’s denial of her CR 60.02 motion, the custody modification order, and any and all collateral orders, including the award of costs and attorney fees to father, because the Kentucky court lacked subject matter jurisdiction under the UCCJEA.  “Under the UCCJEA, the state having original jurisdiction over a custody matter retains exclusive, continuing jurisdiction over all custody matters even when the child has acquired a new home state as long as the child and at least one parent maintains substantial connections with the state.”  Since the mother still lived in Tennessee and the son regularly visited her, the substantial connection requirement was met.  Further, there was nothing in the record that showed that Tennessee declined to exercise its jurisdiction.  The lack of jurisdiction by the Kentucky court cannot be waived.  Even though the mother did not raise the issue of jurisdiction on appeal, appellate courts are required to address jurisdictional issues sua sponte if needed.  

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

Leach v. Harrison, Ky COA, Standing Of Non-Parents (Not Defacto Custodians)To Petiton For Custody

Leach v. Harrison, __ S.W.3d __ (Ky. App. 2009)

    More than eight investigations were opened regarding the mother’s abuse and neglect of her three minor children, including excessive corporal punishment.  Due to the ongoing investigations, all three of the children were eventually placed with the maternal grandparents on a temporary basis. The maternal grandparents filed for permanent sole custody of the children.  DRC recommended that father have custody of the children, the grandparents have visitation, and that mother be allowed to regain her visitation rights.  The trial court rejected the DRC’s recommendations and granted permanent sole custody to the grandparents and allowed the father unsupervised visitation.  Father appealed.  The mother of the children stipulated to neglect in the trial court and did not appeal. 

    COA never reached the merits of the case.  It vacated and remanded based on lack of jurisdiction.  Both parties stipulated before the hearing that the grandparents were not de facto custodians.  The right of a non-parent, other than a de facto custodian, to have standing to petition for custody used to be set forth in KRS 403.420, which was part of the Uniform Child Custody Jurisdiction Act (UCCJA).  The UCCJA was repealed in 2004 and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  No provision or statute currently in effect allows a third party, who is not a de facto custodian, to have standing to petition for custody.  Without jurisdiction, the Court had no power to do anything.  COA ordered the children to remain in the care of the grandparents pursuant to a previous order.  It also noted that if the children remained in the temporary custody of the grandparents for a continuous year following the conclusion of the proceedings, the grandparents would have standing as de facto custodians.  

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

Williams v. Bittel, Ky COA, Custody Modification and Stay of Foreign Judgment

Williams v. Bittel

PUBLISHED: AFFIRMING
HARRIS, SENIOR JUDGE, PRESIDING; ACREE AND CLAYTON CONCUR
COUNTY: DAVIESS

 

Child’s Aunt and Uncle (“the Williamses”) appealed from TC’s order denying their petition to modify custody of Child and cross-appealed from TC’s order denying their motion to reconsider the petition. Fiance of Child’s deceased mother (“Bittel”) appealed from TC’s order denying his petition to modify custody and to stay a foreign judgment.

 

These appeals presented CA with three issues of first impression:

(1) Whether an out-of-state adoption preempts KY custody orders;

(2) Whether a de facto custodian who is granted joint custody rights must continuously meet the de facto custodial requirements in order to maintain standing in custody proceedings; and

(3) Whether TC could properly condition its deference to the GA courts on Child’s custody and visitation by providing that its prior orders regarding Bittel’s joint custodianship and visitation with Child are not affected. 

 

FACTS:

Child’s biological father never had contact with her.  Mother began living with Bittel while pregnant with child, and after Child was born, they functioned as a family unit.  When Child was 18 mos., Mother died. 

The Williamses assumed the responsibilities of caring for Child, but Bittel remained extremely involved in her life and even moved in with the Williamses.  The Williamses later asked Bittel to leave their home.

When Child was 2, Bittel petitioned for custody of Child.  First, TC found that the Williamses and Bittel were de facto custodians of Child.  Then, both parties were granted joint custody. The Williamses were designated primary residential custodians with liberal visitation given to Bittel. Neither the Williamses nor Bittel appealed. 

When Child was 8, the Williamses notified Bittel that they intended to move to Georgia. Bittel ultimately moved for specific visitation.  The Williamses then filed a motion to modify custody.  The motion was denied based upon the Williamses’ failure to support their motion with an affidavit, as required by KRS 403.350.  TC granted Bittel’s motion for specific visitation and carefully outlined a visitation schedule. TC denied the Williamses motion to reconsider their petition for custody modification.  The Williamses appealed this ruling. 

During the pendency of the custody action in KY, the Williamses adopted Child in Georgia. Bittel attempted to intervene in the adoption, but GA law only allows blood relatives standing to intervene in adoption cases, and he failed.  The Williamses filed the GA adoption decree as a foreign judgment in KY. Bittel moved to stay the foreign judgment. TC upheld Bittel’s rights as joint custodian of Child, despite the adoption, but deferred to GA as the more convenient forum.  Bittel appealed and the Williamses cross-appealed this order.

 

I. Interstate Custody Dispute: Does the GA adoption divest KY of custody jurisdiction? No.

 

The Williamses argued that because KRS 403.802 specifically exempts adoptions from the UCCJEA’s concept of “exclusive, continuing jurisdiction,” jurisdiction of all custody proceedings in this action was relinquished to the GA courts because of the adoption.  CA noted that while the UCCJEA does not apply to adoptions, Bittel never claimed that KY should have jurisdiction over the adoption. CA held that exclusive, continuing jurisdiction of the custody matters remains in KY as long as Bittel resides in KY and maintains a significant relationship with Child, so that the GA adoption did not invalidate or alter TC’s custody orders.  CA noted that the Williamses “successfully circumvented the spirit of the law. Their actions create the precise problems that the UCCJEA and the PKPA attempted to avoid; viz., interstate custody disputes and competition. This loophole cannot be closed by our Court, only by legislative action.”

 

II. De Facto Custodianship: Must Bittel continuously meet the de facto custodian requirements in order to maintain standing in custody proceedings? No.

 

The Williamses argued that Bittel never met the standard for de facto custodians.  CA held that while Bittel’s de facto custodian status was the basis for the TC’s award of joint custody, his standing to participate in the custody proceedings was derived from his joint custodian status. He need not maintain the de facto custodian status in order to maintain standing as a joint custodian as such would place an unfair burden upon non-residential joint custodian.

 

III. The Inconvenient Forum Issue: Could TC properly condition its deference to GA courts on custody and visitation issues by providing that its prior orders regarding Bittel’s joint custodianship and visitation are not affected? “Yes.”

 

CA concluded that TC’s imposition of this condition was allowed by statute, but noted that GA courts may not fully enforce the “previous orders” of the TC. 

 

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

Temple v. Temple, Child Custody, Ky COA

Temple v. Temple, ____S.W.3d____(Ky. App. 2009)

Karen is the adopted daughter of Cheryl and Phillip.  At the time of the adoption, Karen was classified as severely emotionally disturbed.  When the parties divorced, Karen remained with Cheryl.  In 2003, at seventeen years old, Karen had a child, N.T.  Karen and N.T. lived with Cheryl for the first twenty months of the child’s life and Karen relied heavily on Cheryl for the support and care of N.T.  Karen later moved into an apartment with N.T., but still relied heavily on Cheryl.  Karen was investigated for neglect on two occasions, but the allegations were not substantiated.  However, social workers testified that N.T. thrived better with Cheryl than with Karen.  In 2007 Karen gave Cheryl written permission to seek medical treatment for N.T. when necessary.  She also agreed that N.T. should live with Cheryl.  In November 2007 Phillip took N.T. for a visit and did not return him.  Cheryl petitioned the court to declare her a de facto custodian and grant her permanent custody, or in the alternative grant her joint custody.  Karen filed a written response, but did not seek custody for herself.  Instead, she argued that her father should have custody. 

    After a hearing, the DRC rendered findings and conclusions of law that were adopted by the trial court.  The court found that Cheryl was not a de facto custodian, since she failed to meet the one year time requirement.  However, the court found that Karen waived her superior right to custody and therefore granted Cheryl sole custody of N.T.  Phillip and Karen were granted shared visitation with N.T. one weekend a month.  Karen was ordered to pay Cheryl $60 per month child support.  Karen appealed. 

    COA affirmed, finding that Karen had waived her superior right to custody by failing to seek custody for herself.  Karen admitted that she did not want custody of her son.  She stated that if she were awarded custody she would give N.T. to her father.  Her testimony was equivalent to an express waiver.    

    Digested bySarah Jost Nielsen, Diana L. Skaggs + Associates

Mauldin v. Bearden, Ky. S. Ct., Child Custody, CR 60, Continuing Jurisdiction

Mauldin v. Bearden, ___S.W. 3d___ (Ky. 2009)

PUBLISHED: REVERSING
OPINION BY JUSTICE NOBLE; ABRAMSON, CUNNINGHAM, SCHRODER, AND VENTERS, JJ., CONCUR; MINTON, C.J., CONCURS IN RESULT ONLY
COUNTY:

JEFFERSON

Paternal Grandparents appealed from CA decision reversing Jefferson Family Court’s (FC’s) order denying Mom’s motion to set aside FC's judgment awarding permanent custody of Daughter to Paternal Grandparents and her motion for visitation, where FC found that it lacked jurisdiction to consider visitation. 

FACTS: 

At time of Daughter’s birth, Mom and Dad were alcoholics and physically abusive to each other.  Mom had been drunk more than once during her pregnancy and while breastfeeding.  She had also been arrested for PI and DUI during her pregnancy.  Paternal Grandparents filed a petition for temporary and permanent custody and an ex parte emergency motion for temporary custody of Daughter four days after birth of Daughter.  Maternal Grandparents supported the motion, providing an Affidavit regarding both Mom’s and Dad’s unfitness to parent.  FC entered temporary custody order that day and referred the matter to CFC for investigation.    Daughter was immediately taken to Alabama to live with Paternal Grandparents.  CFC subsequently filed DNA action a few days later, which was transferred to same division as custody action consistent with principle of “one family, one judge,” which underlies Family Court, though the actions had and continued to have separate case names and numbers.  The following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. FC reaffirmed its award of temporary custody to Paternal Grandparents.  At a subsequent hearing, Mom and Dad were ordered to participate in a course of rehabilitative treatment and testing and were allowed supervised visitation, though neither ever exercised that right.  Neither Mom nor Dad filed a responsive pleading during this time.

Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed   a response. FC entered a default judgment granting Paternal Grandparents permanent custody.  The supervised visitation order from the DNA proceeding remained in effect, but as CFC was taking no further action, there was no termination of parental rights that would have prevented the ordered visitation.  Mom and Dad were still living together.  Paternal Grandparents then initiated proceedings in Alabama, then the home state of Daughter, to formally adopt Daughter. Daughter had then been living there for nearly a year. Alabama entered temporary decree granting custody to Paternal Grandparents and set a dispositional hearing.  Mom participated in the Alabama proceeding through counsel.  She then filed a motion with Jefferson Family Court (FC) under case numbers for both custody and DNA actions, but noticed only for DNA docket, asking for custody of Daughter.  FC denied her motion as improper on DNA docket.

Mom then filed a motion to set aside the default judgment entered against her and to set a custody hearing, pursuant to CR 60.02(d) and (f). In support of her motion, Mom did not provide a Memorandum but filed affidavits signed by herself, Dad and Maternal Grandparents. Mom's affidavit stated that she believed Dad and Paternal Grandparents had conspired with Dad to prevent her participation; that Dad’s threats of abuse and her lack of access to vehicle or phone prevented her from participating in the permanent custody hearing; and that she otherwise would have defended herself, though she did not provide the basis for her defense.  Dad corroborated the abuse and conspiracy.  Maternal Grandparents stated that Mom was now capable of having custody of Daughter.   

After reviewing rebuttal affidavits and hearing the arguments of counsel, FC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents or collusion occurring between Dad and Paternal Grandparents and that Paternal Grandparents had done nothing wrong in their pursuit of custody of Daughter. FC noted that Mom and Dad stipulated in DNA proceeding that Daughter was at risk of neglect due to their alcohol abuse.  FC agreed that it had jurisdiction, but that that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02.  FC denied Mom's motion to alter, amend or vacate, declining to exercise jurisdiction and deferring the visitation issue to Alabama as the home state of the child.  Mom appealed.  CA reversed, vacated and remanded, holding that affidavits submitted by Mom alleged facts that, if true, demonstrated fraud justifying vacation of the judgment, and that FC should hold a full evidentiary hearing with testimony.  CA also found that Kentuckyhad continuing jurisdiction under KRS 403.824, but did not address the fact that FC expressly declined jurisdiction. 

Questions:

Did FC properly deny Mom’s CR 60.02 motion without conducting full evidentiary hearing on fraud allegations?

Does FC have continuing exclusive jurisdiction such that it must make decisions regarding visitation? 

Analysis:

CR 60.02:

SC found that given what FC judge had from affidavits, record, and what he knew from case, he had sufficient information to determine facts and judge credibility of parties without taking further testimony.  FC was well within its discretion to take allegations on their face, and determine if further proof was necessary, as specificity of fraud allegations would be fleshed out by further testimony but not fundamentally changed.  FC judge had already had numerous contacts with parties to judge credibility of the affidavits.  Also, as a policy matter, FC’s decision spared family further turmoil from redundant testimony.

SC further found that Mom did not have nor did she allege defense at time of default judgment, as required by CR 60.02, and that although abuse and addiction are factors that are proper for a court to consider, neither standing alone equate to “facts of an extraordinary nature” required to be present under CR 60.02.  

Continuing Jurisdiction:

SC found that FC did have jurisdiction over actions concerning Daughter because she was born in Kentucky

and had resided here the entire eight days of her life when action was filed. 

SC nonetheless noted several procedural errors.  Paternal Grandparents filed Petition for custody under KRS 403.828, 403.270, and 405.020.  However, none of those statutes were applicable to Paternal Grandparents at that time. KRS 403.270 and KRS 405.020 applied to parents and/or de facto custodians and, since Paternal Grandparents had not had physical custody of nor provided financial support for Daughter for previous 6 months, they were not de facto custodians.  KRS 403.828 grants emergency jurisdiction to Kentucky when a child is brought in from another state that has jurisdiction over the child but is not exercising it.  As Daughter was resident of Kentucky at the time, this statute did not apply. 

SC noted that Paternal Grandparents could have filed a DNA petition under KRS 620.070 and FC could have issued emergency custody order to Paternal Grandparents under KRS 620.060, but that this order would only have been effective for 72 hours and that temporary removal hearing with full notice to both parents would have had to be held during that time.  That did not occur in this case.  Only when FC “renewed” its temporary custody order and ordered supervised visitation for Mom and Dad in the DNA docket did Paternal Grandparents have full legal custody.  FC should not have refused to hear Mom’s motion to modify custody orders just because Mom filed in the DNA action rather than the KRS 403 action.  SC opined that “it makes little sense… to continue to treat this subject matter as separate actions, if the purpose of the family court system is ‘one family, one judge,’” and that, “one a legitimate party properly invokes the court’s jurisdiction…continued compartmentalization of the proceedings—before the same judge—works only to disadvantage some litigants without a sound reason for doing so.”  SC nonetheless found that these problems did not affect the ultimate outcome, for when Kentucky declined to exercise jurisdiction and deferred to Alabama, proper UCCJEA provisions were followed regarding custody and visitation.  Moreover, UCCJEA does not apply to adoption proceedings and FC could make no ruling affecting Alabama

adoption proceeding.

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

Young v. Holmes, Joint Custody, Ky COA Affirmed Order Of Religious School

Young v. Holmes, __ S.W.3d __ (Ky. App. 2009)

           The parties share joint custody of their minor child and could not agree as to where the child should attend kindergarten.  The trial court held a hearing and found that it was in the best interests of the child to attend St. Athanasius School.  Young appealed.  Young argued that the order violates her First Amendment right to religious freedom and that the court could only appropriately order the child to attend St.Athanasius if it found that he had special needs that would require him to attend a private school. 

COA affirmed.  The trial court used the correct standard of best interests of the child and did not base its decision on religious interests.  Young had the burden to prove that “the decision of the trial court was based upon religious interests and such impropriety would not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”  Therefore, the order did not violate the First Amendment.  Further, the trial court was not required to find that the child had special needs prior to ordering that he attend a private school, since Holmes voluntarily undertook the additional cost of the child’s private education.  Miller v. Miller and Smith v. Smith, cited by Young for that proposition, addressed situations where the trial court had imposed upon a party the additional cost of private education, and thus were not controlling authority in the instant case.    

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

J.G. v. J.C., Ky COA, Defacto Custodian

J.G. v. J. C. , _ S.W.3d _ (Ky. App. 2009), 2008-CA-1023

Parents appeal the judgment holding that the grandparents are the de facto custodians of S.G. The parents have three other children, all of whom had been previously removed. Due to previous issues, social services placed S.G. with the grandparents three days after she was born. A couple of weeks later the parents filed a motion to terminate the temporary custody order and have S.G. returned to their care. The trial court denied the motion. The parents then participated with social services to try to regain custody of S.G. After about eleven months, the grandparents filed a petition for declaration of de facto custodian and permanent custody. After numerous hearings, the DRC recommended that the grandparents be deemed the de facto custodians of the child and be awarded permanent custody. The trial court adopted the DRC recommendations. The parents filed exceptions to the findings, a motion to alter the court’s decision, and a motion for further findings of fact. The trial court denied the motions and this appeal followed.

COA found that the grandparents did not meet the statutory requirements for being declared the child’s de facto custodians. COA reversed and remanded, ordering the trial court to make further findings of fact. First, the trial court must determine whether the grandparents met the one year time requirement pursuant to KRS 403.270, especially in light of the tolling requirement of KRS 403.270(1)(a). The time between when the parents filed their motion to terminate the temporary custody order and when the court ruled on that motion does not count toward the de facto custodian time requirement. Next, the trial court must make the findings requested by the parents in a previous motion. Finally, the COA noted that a married couple is considered a single unit for the purpose of de facto custodianship, and therefore a couple may be deemed de facto custodians as opposed to a single individual.

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

Herald v. Herald, UCCJEA (Child Custody Jurisdiction)

HERALD V. HERALD CHILD CUSTODY JURISDICTION (UCCJEA) 2008-CA-000601 PUBLISHED: VACATING AND REMANDING PANEL: THOMPSON PRESIDING; STUMBO AND GUIDUGLI CONCUR COUNTY: KENTON DATE RENDERED: 2/13/2009

Dad appealed KY TC’s ruling awarding custody of 3 children to Mom, contending that KY TC lacked jurisdiction to make such an order under UCCJEA.

FACTS: Family lived in NC for several years before parties separated and Wife and children moved to KY in April 2007. Dad, a marine, stayed in NC awaiting deployment. In June 2007, parties entered into a separation agreement giving Dad custody of kids, and kids returned to NC where they stayed until Mom removed them again in October. Mom then filed Petition for Dissolution of Marriage in KY in January 2008. A few weeks later, Dad then removed the kids back to NC, refusing to tell Mom of kids’ location or to allow her to speak with him and informing her that he was soon to be deployed to Iraq.

Mom subsequently filed Motion for custody in KY. TC issued order scheduling status hearing for February 19th. On February 15th, Mom filed and was granted an ex parte motion for emergency custody. Dad’s NC counsel corresponded with KY court on February 18, advising that Dad was deployed, kids had lived in KY only 2 ½ months, and providing copy of his motion for custody filed in NC court on February 15. KY TC nonetheless conducted hearing on February 19. Mom testified, but Dad did not appear. KY TC indicated at end of hearing that it would communicate with NC court re proper jurisdiction under UCCJEA, but this never occurred. KY TC gave Mom custody a week later. Dad entered special appearance a month later to move to dismiss case due to KY TC’s lack of subject matter jurisdiction and in personam jurisdiction over him. KY TC declined to dismiss Mom’s custody petition but did stay action under Soldiers’ and Sailors’ Civil Relief Act.

ANALYSIS: Parties conceded that KY was not home state of children for six months, nor that NC had declined to exercise jurisdiction; therefore, KRS 403.822 did not apply. Mom alleged that KY had jurisdiction under KRS 403.828, the temporary emergency jurisdiction provision of the UCCJEA. This statute allows KY jurisdiction where a child in KY has been abandoned or needs emergency protection to prevent or escape from mistreatment or abuse. CA found no allegations of mistreatment or abuse by Mom in refusal to inform her of location of children. Although Dad was due to be deployed to Iraq, TC cannot use this fact against Dad because those serving in military should not be automatically deprived custody of their kids. Furthermore, to allow such justification for exercise of “emergency” jurisdiction would allow a parent seeking custody to file such a petition in any state moment before deployment.
KY TC’s order vacated and remanded for order dismissing petition for custody.

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

Ky UCCJEA COA Decision February 13, 2009

A digest of Hearld v. Hearld, custody jurisdiction under UCCJEA, will be posted soon

Kentucky Supreme Court January 2009 Family Law

No to be published family law decisions were released by the Kentucky Supreme Court yesterday. Discretionary review was granted in Mullins v. Picklesimer, (child custody, lesbian partner of biological mother). The Court of Appeals opinion is here and our digest is here. Discretionary review was also granted in Mauldin v. Bearden,(child custody, grandparents, UCCJEA) online here and digested here.

Comment On Murphy v.Murphy

A thoughtful comment was posted to Murphy v.Murphy, digested here. As comments can be almost lost below the fold, I thought this one From Donald W. Aaron in Florence deserved posting in its entirety. I was in the courtroom for this case when the wife appeared pro se and requested that the judge vacate his custody order. I agree with the CA's statement of the importance of adequate notice of such a life-altering hearing. Earlier in my career, I had a judge ask me to serve an opposing party directly when no one showed for a post-decree hearing after I only served the prior attorney of record. Now we have an opinion affirming this as good practice. This opinion is also important in providing protection for attorneys, because "as a matter of law, conclusion of a divorce action terminated the attorney-client relationship." In the instant case the wife should not have filed an appeal while a "valid" motion to alter, amend or vacate was pending. If the CA found the motion tolled the time for appeal, and her appeal was vacated as premature, then any appeal filed after the first dismissal could have again been dismissed as untimely, the clock having run. Appeals have tricky trap doors, even for experienced trial counsel. Wife was pro se on appeal, as she was credited with an appellate brief.

L.J.P. v. Cabinet for Health and Family Services, Ky COA, Grandparent Rights In Termination Action

L.J.P. v. Cabinet for Health and Family Services, _ S.W.3d _ (Ky. App. 2008) 2008 WL 4998635

Paternal grandparents appealed trial court order denying their motion to intervene and request for custody of their grandchild in an involuntary termination of parental rights action. The issue on appeal was whether the grandparents have a right under CR 24.01 to intervene in a termination of parental rights action. COA found that grandparents have a “legally cognizable interest” in their grandchildren under Kentucky law. KRS 625.100 recognizes that the child’s relatives have an elevated status when the court awards custody of the child post-termination. It is difficult to understand how grandparents will assert their interest as potential custodians if intervention is not allowed. In addition, grandparent visitation survives termination proceedings if established prior to termination and in the best interests of the child. Pursuant to Baker v. Webb, grandparents have a right to intervene in adoption proceedings. COA held that “[t]he right of grandparents to intervene in an adoption proceeding, recognized in Baker, would be impaired or impeded if the grandparents were denied the right to intervene in the custody determination subsequent to a termination proceeding because the stability of the child as well as the child-grandparent relationship, factors to be considered in a subsequent adoption proceeding, may likely be adversely affected by the custody order that follows termination but precedes adoption.” Therefore, grandparents have a right to intervene in the custody determination under KRS 625.100. REVERSED AND REMANDED
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Heartbroken Holidays: Help for a Child Divided

The first holidays after a divorce or separation can be a heartbreaking nightmare as estranged parents negotiate access to their children. There are ten things parents can do to help their children enjoy the holidays and to serve their best interests in the future.

“Divorce is never an easy experience,” said Gaetano “Guy” Ferro, immediate past president of the American Academy of Matrimonial Lawyers (AAML). “Children can make it more difficult for the parties to reach reasonable agreements. Disagreements about financial issues may cause the parents to act emotionally or irrationally when it comes to the children. The primary goal of both parents and their attorneys should be to avoid conduct which would be detrimental to the children’s best interest.”

• Give your children permission to love the other parent. Help your child make a card for Dad or buy a gift for Mom. Encourage them to call the other parent.
• Set realistic expectations. To divide or share a holiday, each parent will have only half as much time with the child. While children may enjoy multiple celebrations, most do not care that the festivities are actually on “the” day. Holidays can be alternated by year and if Mom does not have Thanksgiving with the child this year, bake a turkey the preceding weekend.
• Coordinate gift giving. If a child has a wish list, split it with the other parent. Resist the temptation to over-indulge the child with gifts. Do not give the child a gift you know the other parent is planning to give. If the other parent will not cooperate, do not complain to the child.
• Do not use your children as messengers. The decision of where to go and when should be decided by the parents. Permitting the child to choose time with one parent is a burden and vests the child with inappropriate power.
• Do what you say you are going to do. Pick up and drop off the children on time. Do not request last minute changes.

Other tips for divorcing parents include never letting a child hear you disparage the other parent. Resist the temptation to permit your child to act as your caretaker. Do not uproot your children if at all possible. Reassure your children that the divorce or separation is not their fault and encourage and permit your child to see and love grandparents, aunts, uncles, and cousins on the other parent’s side of the family.

Over the coming holidays, please let your children be children. They shouldn’t have to worry
about adult problems. For more helpful tips you can access the “Children’s Bill of Rights” and “Stepping Back From Anger” on the AAML website, www.aaml.org.

Many parents contemplate divorce as holidays and New Year approach. Holiday filings can increase the trauma; your children will always associate their parents’ divorce with the holidays. Please resist the urge. Divorce lasts a long time. There’s rarely a reason to rush. At a time of year that resonates family and joy, please put your children’s well-being ahead of your own.

Young v. Carran, Ky COA, Release Of Medical Records In Child Custody Litigation, HIPPA

YOUNG V. CARRAN 2008-CA-000082 PUBLISHED: AFFIRMING PANEL: LAMBERT PRESIDING; KELLER AND WINE CONCUR COUNTY: KENTON DATE RENDERED: 10/24/2008

Mom sought to maintain a private cause of action against Dad’s law firm for violation of HIPAA for the inadvertent disclosure of her medical and psychiatric records to Dad in child custody litigation. TC granted summary judgment. Mom appealed.

Mom signed release as to her medical records, but expressly did not agree to release of records to Dad. After Dad’s firm received the records, Dad ultimately chose to seek other counsel and picked up his file from the firm. He left the package, containing the unreviewed medical records, in his vehicle. Mom removed the package before he reviewed them.
Mom subsequently filed suit against Dad’s former law firm, claiming violation of HIPAA amongst other claims. Dad’s former law firm moved for summary judgment. TC granted the motion, holding that HIPAA does not create a private cause of action for violations such as those alleged by Mom; and furthermore, that KRS 446.070 is limited in applicability to state statutes and does not apply to federal laws such as HIPAA or the laws of other states. Mom appealed.

CA held that HIPAA does not create a state-based private cause of action for violations of its provisions. KRS 446.070 provides an avenue by which a damaged party may sue for a violation of a statutory standard of care if the statute in question provides no inclusive civil remedy and if the party is within the class of persons the statute is intended to protect. However, Mom could not avail herself of this statute because it does not apply to any statutes but Kentucky state statutes. TC affirmed. Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates