Divorce Law Journal

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

RIEHLE V. RIEHLE

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

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

Digested by Elizabeth M. Howell

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

Collett v. Dailey as Guardian of Hazel C. Collett

No. 2010-CA-002115-ME

County: Kenton

Published: Opinion affirming

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

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

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

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

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

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

Amicus Briefs In US Supreme Court Grandparent Visitation Case

Howard Basham at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case in the US. Supreme Court, Fausey v. Hiller, No. 06-863.

Should Grandma Divorce Grandpa?

Should Grandma Divorce Grandpa? By Liz Pulliam Weston appears at MSN Money. The population of divorced people over 65 has exploded in the past 15 years, and elder-law attorneys suspect money is at least partly to blame. The idea that money might be a factor in divorce isn't news. But instead of fighting over their money, these attorneys say, older people who divorce might be trying to preserve it. Christine Crawford of Aurora, Ohio, started divorce proceedings after her husband's care for dementia consumed more than $100,000 of their savings.

Crawford said she didn't want to divorce her husband, with whom she'd raised three children, but it was the only way to preserve what was left of their life savings.

"All along I kept saying, 'Absolutely not. I won't do that,' " said Crawford, whose husband died before the divorce was final. "I was so proud of the fact we'd been married for 42 years."

Trapped by aid-program rules
To understand why Crawford faced such a wrenching decision, you need to understand some background:

Medicare, the government insurance program for people 65 and over, doesn't cover long nursing-home stays.
But Medicaid, the federal health program for the poor that does cover such care, generally requires people to exhaust their financial resources before they can qualify for help.
When one spouse gets sick, many married couples face the uncomfortable prospect of having to "spend down" most of their assets to qualify for Medicaid, leaving little for the healthy spouse to live on. If the spouses divorce, however, the healthy spouse may be able to preserve more of the couple's assets.Elder-law attorneys suspect that's among the reasons the proportion of people over 65 who list their marital status as "divorced" has risen nearly 60% since 1990, compared with an 8% rise in the proportion of divorced adults overall.

The attorneys fear the trend may accelerate in coming years, at least in some states, because of recent changes in Medicaid laws that make it tougher to qualify. I outlined some of those changes in "Feds target Grandma's Medicaid."

I concur with the author's sentiments that our federal laws should not encourage divorce.

Kentucky: Grandparent Visitation

This case is not yet final.
Vanwinkle v. Petry, __ S.W.3d __ (Ky. App. 2007), 2007 WL 121965 (Ky. App.)

Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.

Issue One: May the Court, sua sponte¸ award visitation to grandparents?

More Discussion About Grandparent Visitation

The Family Law Prof Blog reports: "Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case." They link to a USA Today.com Yahoo news report of October 5, 2006, Court Fights Hurt Children.
We posted about these cases here. Marcia Oddi at IndianaLawBlog posted about them here.

Two New Post-Troxel Grandparent Cases

Two More State Supreme Courts Uphold Grandparent Visitation Laws - Despite the Supreme Court's Holding that They Can Be Unconstitutional is an online article by Joanna Grossman posted yesterday. In it she digests the recent Utah and Pennsylvania cases upholding grandparent visitation along with links to them, to Troxel and to other post-Troxel cases
"Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.
Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature's substitution of "sentimentality for constitutionality," to the detriment of parental decisionmaking.
However, within the last two years, California and Ohio have both upheld their state's laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.
The Pennsylvania Supreme Court ruled, in Hiller v. Fausey, that a state law permitting grandparent visitation over the objection of the child's sole living parent was constitutional -- even without any showing that denying grandparent visitation would cause harm to the child...."
The Utah Supreme Court ruled similarly in Uzelacv. Thurgood, another case in which a father denied visitation with maternal grandparents after the mother's death."
It's a useful article to save in your brief bank.
UPDATE: Indiana Law Blog has a number of posts on this issue as well.