Divorce Law Journal

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

LAMBERT V. LAMBERT

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

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

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

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

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

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

Digested by Elizabeth M. Howell

Domestic Violence Published Opinion from Ky. S. Ct. October 29, 2015

PETTINGILL V. PETTINGILL

Questions Presented: Domestic Violence. Appellate Procedure. Issues involve the use of “lethality factors” in a domestic violence determination and the interplay between CR 75.07(4) and CR 98 when the trial videotape is omitted from the record on appeal.

Wife was granted DVO against husband by family court. The family court entered a DVO on Court Form 275.3 and noted further findings of fact, nine out of twelve lethality factors, on its docket sheet. Husband appealed and the Court of Appeals affirmed the family court’s DVO. The Supreme Court granted discretionary review.

Husband first argues that he was denied his constitutional right to appellate review because the circuit court clerk failed to certify the video record of the domestic violence hearing, therefore, the Court of Appeals did not receive a copy of the recorded hearing. The Supreme Court does not consider the assignment of error because husband had clear notice the video was not part of the record. He did not mention the incomplete record in his brief for the Court of Appeals and therefore the Supreme Court holds he is foreclosed from now assigning error. Additionally, husband’s counsel conceded during oral arguments at the Court of Appeals level that the video was not relevant to the appeal. 

Next, husband argues that the family court impermissibly took notice of the lethality factors for intimate partner violence. The Supreme Court finds this argument is without merit as a trial court did not take judicial notice of the lethality factors, but rather considered them as part of judicial knowledge. A judge may use his or her background knowledge of an area, such as domestic violence, to inform its judgment. In this case, the court used the lethality factors to assess the likelihood that domestic violence would occur again. All of the adjudicative facts were proven through testimony.

Third, husband argues that the court erred by using the lethality factors as the standard to enter a DVO. The Supreme Court agrees with the Court of Appeals that the family court adhered to KRS 403.750, as evidenced, in part, by its use of the AOC Form 275.3 which “clearly tracks” the language of the statute. The court’s reference to the lethality factors does not negate the court’s finding under statute that husband inflicted fear of imminent physical injury, serious physical injury, sexual abuse, or assault and that fear, injury, abuse or assault may occur again in the future.

Finally, husband argues that the AOC Form 275.3 is deficient, therefore the family court did not specify sufficient finds of fact to support the entry of a DVO.  The court does not consider this argument, holding that the family court made sufficient findings of fact as the family court not only found domestic violence had occurred and may occur again, but also listed nine specific findings to support its order.

 Digested by Elizabeth M. Howell

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

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

Published:   Reversing and Remanding   

County:  Barren

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

FACTS:

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

ANALYSIS:

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

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

Reversed and Remanded for an evidentiary hearing.

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

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

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

No. 2012-CA-000358-ME

Published: Opinion Vacating and Remanding

County: Jefferson

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

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

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

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

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

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

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

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

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

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

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.

Fraley v. Fraley, Ky Domestic Violence and Evidence

Fraley v. Fraley, 2009-CA-002167-ME  

Issue:  Domestic Violence Order, abuse of discretion

Published:   Reversing

County: Bourbon

 

Husband appealed DVO entered by FC, arguing that FC applied wrong definition of “domestic violence” and abused its discretion by allowing an unsworn, unidentified person to interject at the DVO hearing, by allowing the admission of hearsay statements set forth in the domestic violence petition, and by considering the impact of alleged hearsay statements on Wife; and that FC clearly erred when it found that an act of domestic violence occurred.

 

FACTS:

Alleging that her marriage counselor told her in an individual session that Husband was a dangerous person, that he was a man with no conscience, and that she needed to run from him, Wife sought the protection of an EPO and DVO.  At the DVO hearing, Wife stated that she was generally fearful of Husband, but did not relay any particular instance that made her feel fearful, only that she was uncertain as to how far would go due to his jealousy and unreasonableness.  She stated that she came to believe that Husband was a sociopath after meeting with the marriage counselor.  FC denied Husband’s request to have the marriage counselor identified.  FC indicated that it could not consider what the counselor said, only how it impacted Wife’s thinking.  During the court hearing, a woman in the back of the courtroom informed the court that Wife had contacted the Bluegrass Domestic Violence Program regarding the same issues before the court.  This woman was not identified or sworn in. FC concluded that domestic violence had occurred because it includes conduct that causes someone to fear for their safety, so it could take the form of words, driving by someone’s house, etc.

 

ANALYSIS:

Definition of “domestic violence” and Claim that FC clearly erred when it found that an act of domestic violence occurred:

CA found that circumstances of the case did not meet definition of domestic violence because there was no evidence that Husband inflicted the fear of imminent physical injury on Wife; thus FC abused its discretion in entering the DVO.

 

Claim regarding unsworn, unidentified person:

Because Husband did not object at the hearing, CA’s standard of review was palpable error.  Although action was improper and court should have admonished the woman and stated that her statement would not be considered in its decision-making, it did not result in manifest injustice to Husband so no palpable error.

 

Claim regarding admission of hearsay statements:

FC stated that it would not consider the marriage counselor’s statements, which remedied the situation, so there was no error.

 

Claim regarding FC’s consideration of impact of hearsay statements on Wife:

FC erred in considering these statements as it was the counselor’s statements, not Husband’s, that caused Wife’s fear.

 

Digested by Michelle Eisenmenger Mapes, 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.

 

Ky Criminal Background Checks - New Way To Access

AOC Announces Changes

The Administrative Office of the Courts announced changes to its service that provides criminal background reports.

The following changes will be effective Jan. 19, 2010:
- There will be a standard fee of $15 for all criminal background reports;
- A new automated program, AOCFastCheck, will allow the public to request and receive reports online;
- There will be only three ways to request records  online, by drive-thru service in Frankfort and by mail.

The increase from $10 to $15 will be the first fee increase the AOC has implemented since 2003. At $15, the fee is still less than the amount charged by several other states for background reports.

The AOC Records Unit processes approximately 950,000 criminal record reports each year. The reports are produced from data stored in CourtNet, the statewide database used by the Kentucky Court of Justice to collect information from the court case management system in each county. About 60 percent of those reports are provided free to schools and government agencies. Reports to schools and government agencies will not be affected by the fee increase and will continue to be provided free of charge.

In an effort to more quickly fill requests for criminal record reports, the AOC will make AOCFastCheck, a new automated online system, available to anyone who wants to become a registered user. This new service begins Jan. 19.

AOCFastCheck represents a huge technological leap in our ability to meet the demand for criminal record reports, said Jason Cloyd, manager of the AOC Division of Records and Statistics. The limitations of our manual system have made it challenging to respond to the growing volume of record requests in a timely way.

The AOC first offered AOCFastCheck to Kentucky schools in August 2009 as a way to quickly turn around the thousands of criminal record reports requested annually for school personnel and volunteers. Cloyd said that the test run of AOCFastCheck proved to be a great success and he looks forward to providing this online option to the public.

The AOC hosts AOCFastCheck on a secure server. To establish a free account beginning Jan. 19, individuals can visit www.courts.ky.gov and click on Obtain a Criminal Background Report under Helpful Links. Once users have an account, they can submit a request at any time and be notified by e-mail when the criminal record report is available. They log onto the same account to submit requests, track the progress of requests and receive reports. AOCFastCheck users pay online per request using certain credit and debit cards or an electronic check.

For more information, call the AOC Records Unit at 800-928-6381 between 8 a.m. and 4:30 p.m. Monday through Friday.

Electronic Evidence

Spousal team Sharon D. Nelson and John Simek of Sensei gave a great presentation at the AAML annual meeting in Chicago last week. I had been following Sharon's blog, Ride The Lightning for a few weeks, so I was surprised and delighted to meet her and learn forensic electronic evidence tips from them. If you check out her blog, please note that the colorful and shameful stories about the wayward lawyer disciplined are NOT about one of our members!

Tell-All PCs and Phones Transforming Divorce

Here are some quotes from a front page New York Times article today, Tell-All PCs and Phones Transforming Divorce.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”

Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.

“Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”

The article continues,

Divorce lawyers say their files are filled with cases like these. Three-quarters of the cases of Nancy Chemtob, a divorce lawyer in Manhattan, now involve some kind of electronic communications. She says she routinely asks judges for court orders to seize and copy the hard drives in the computers of her clients’ spouses, particularly if there is an opportunity to glimpse a couple’s full financial picture, or a parent’s suitability to be the custodian of the children.

Lawyers must navigate a complex legal landscape governing the admissibility of this kind of electronic evidence. Different laws define when it is illegal to get access to information stored on a computer in the home, log into someone else’s e-mail account, or listen in on phone calls.

Divorce lawyers say, however, if the computer in question is shared by the whole family, or couples have revealed their passwords to each other, reading a spouse’s e-mail messages and introducing them as evidence in a divorce case is often allowed.

Lynne Z. Gold-Bikin, a Pennsylvania divorce lawyer, describes one client, a man, who believed his wife was engaging in secret online correspondence. He found e-mail messages to a lover in Australia that she had sent from a private AOL account on the family computer. Her lawyer then challenged the use of this evidence in court. Ms. Gold-Bikin’s client won the dispute and an advantageous settlement.

Lawyers say the only communications that are consistently protected in a spouse’s private e-mail account are the messages to and from the lawyers themselves, which are covered by lawyer-client privilege.

Perhaps for this reason, divorce lawyers as a group are among the most pessimistic when it comes to assessing the overall state of privacy in the digital age.

“I do not like to put things on e-mail,” said David Levy, a Chicago divorce lawyer. “There’s no way it’s private. Nothing is fully protected once you hit the send button.”

Ms. Chemtob added, “People have an expectation of privacy that is completely unrealistic.”

James Mulvaney agrees. A private investigator, Mr. Mulvaney now devotes much of his time to poking through the computer records of divorcing spouses, on behalf of divorce lawyers. One of his specialties is retrieving files, like bank records and e-mail messages to secret lovers, that a spouse has tried to delete.

“Every keystroke on your computer is there, forever and ever,” Mr. Mulvaney said.

He had one bit of advice. “The only thing you can truly erase these things with is a specialty Smith & Wesson product,” he said. “Throw your computer into the air and play skeet with it.”

I was pleased to see Guy Ferro, AAML president quoted in the article as well as Lynne Gold-Bickin who is coming to present at our seminar in Louisville next April and David Levy, who was here this past April and with whom I am co-counseling on a case. I may post more in the coming days about the law in this area. Meanwhile, thanks to Marcia Oddi at Indiana Law Blog for spotting this article and posting about it here while I was out having a grand old time at Idea Festival.

Divorce Courts May Not Prohibit Oral Testimony

As family courts struggle with huge caseloads and as a movement to informalize procedure gains ground, Family Law Prof Blog has this to say about Elkins v. Superior Court (California Supreme Court, August 6, 2007)

The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual
circumstances.” The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules.

The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes." Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.

The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources. However, on balance, that did not justify the violation of basic trial procedures.

That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.”

Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

S.L.T. v. R.J.C.

S.L.T. v. R.J.C., 196 S.W.3d 530 (Ky.App. 2006)

Issue and Holding:
Whether the trial court erred in issuing a domestic violence order. The Court held no, the trial court did not err because the evidence established that domestic violence had occurred and may occur again.

Facts:
The parties, never married, are the parents of one child. R.J.C, the mother, filed a domestic violence petition against the father, S.L.T., alleging that he sexually abused their child. The court issued several emergency protective orders to restrain the father from having contact with the mother or child. The court then held a hearing on both the domestic violence petition as well as a separate dependency action. At the hearing, the parties agreed to waive the hearing on the dependency action and scheduled further proceedings for a later date. However, it was noted that the initial sexual abuse allegations had been substantiated and that the investigation was still ongoing. Over the father’s objection, the court ordered him to have no contact with the child, who was to remain in the mother’s custody.
When the court proceeded with the hearing on the domestic violence petition, the father objected to any portion of the petition that contained hearsay. The court sustained the objection. The court then heard sworn testimony from the mother and a social worker. The mother testified that after she picked the child up from her father, the child immediately talked to her about the abuse, that the mother called 911 and had the child examined at a hospital, and that the mother had observed the child “hunching” things and talking about similar behavior. The social worker testified that she was present during the child’s interview and that the allegations had been substantiated. The court found that domestic violence had occurred and may occur again, and granted the DVO. The father appealed.

Analysis:
KRS 403.750 provides that a court may issue a DVO if after a hearing it finds by a preponderance of the evidence that domestic violence has occurred and may occur again. Under KRS 403.720(1) sexual abuse is included in the definition of domestic violence.
The Court found that the trial court did not base its ruling on hearsay, as the father argued. The trial court correctly based its ruling on the testimony of the mother and social worker, which adequately supported the court’s determination that a preponderance of the evidence showed that domestic violence had occurred and may occur again.
The Court affirmed the trial court’s order.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G., 190 S.W.3d 338 (Ky. 2006)
Issues and Holdings:
1. Whether the evidence was sufficient to terminate parental rights. The Court held yes, the evidence was sufficient.
2. Whether out-of-court statements made by a child to a therapist and pediatrician describing sexual abuse were admissible under the hearsay exception for statements made for purposes of medical treatment or diagnosis. The Court held yes, that the statements were admissible under the hearsay exception.
3. Whether the Sixth Amendment right of confrontation, as outlined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied to termination of parental rights proceedings. The Court held no, the right of confrontation is not applicable in such proceedings because termination of parental rights proceedings are civil and not criminal.

Facts:
A.G.G. and W.E.G., both mentally disabled, are the parents of two children, N.E.G. and A.E.G. The family lived at two residences, their own home and the home of the children’s paternal grandparents. The Cabinet found both residences to be unsafe and in poor condition and the children to have poor hygiene, missed school, and delayed learning. The parents ignored appointments with social workers. The Cabinet also learned that two paternal uncles, who lived primarily at the paternal grandparents’ residence, were possible sexual offenders. There was evidence that at least one of the uncles sexually abused N.E.G. at the paternal grandparents’ residence.
The Cabinet made numerous recommendations, which were adopted by the family court as a disposition order. The recommendations included regular school attendance, improved home sanitation and hygiene, and that the children have no contact with certain paternal relatives. The parents failed to comply and the children were removed to foster care. The foster mother later observed N.E.G. sexually acting out with A.E.G. and other children. After repeated failure of the parents to respond to family services, the Cabinet filed a petition to involuntarily terminate parental rights.
The family court terminated the parental rights of both parents after a two day trial. The Court of Appeals reversed and remanded for a new trial, holding that the family court admitted improper hearsay evidence in violation of the holding in Crawford v. Washington. The Supreme Court granted discretionary review.

Analysis:
First, the Court held that the evidence was sufficient to terminate parental rights. The Court found that the family court’s findings of fact were not clearly erroneous and were supported by clear and convincing evidence. The Court found that there was ample evidence that N.E.G. was sexually abused and that the parents created a risk that an act of sexual abuse would be committed on A.E.G.
Second, the Court held that the statements made by N.E.G. to his therapist and pediatrician were admissible at trial under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though the therapist was not a physician. N.E.G. made statements to the therapist regarding sexual abuse by his two uncles and father. Such statements were admissible, even though the therapist was not a physician, since the therapist testified that she intended to provide any needed therapy for the child’s mental health. N.E.G. made statements to the pediatrician regarding sexual abuse by one of his uncles. Such statements were admissible since the physician was diagnosing and treating the child for suspected abuse.
Finally, the Court rejected the Court of Appeals’ reliance on Crawford to exclude the above statements. The Court found that Crawford was not intended to apply where the Sixth Amendment does not apply, such as in civil proceedings. Since termination of parental rights proceedings are civil, not criminal, Crawford does not apply. The Court also rejected the Court of Appeals’ reliance on G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App. 1985), for the proposition that hearsay exceptions do not apply in termination of parental rights proceedings. The Court noted that it had narrowed the holding of G.E.Y to permit the introduction of portions of the Cabinet’s investigative file that would be admissible if the social worker testified in person. Thus, G.E.Y. did not preclude the introduction of the statements of N.E.G. to the therapist and pediatrician.
The Court reversed the Court of Appeals and reinstated the judgment of the family court.

The Child Custody Issue Needs To Be Remanded For A New Trial But it Would Be A Great Case For Discretionary Review On The Goodwill Issue: What Will Retired Justice James E. Keller Do?

Gaskill v. Robbins, NO. 2005-CA-002088-MR, http://opinions.kycourts.net/coa/2005-ca-002088.pdf, was decided December 8, 2006 in an Opinion Reversing and Remanding which is designated to be published. The custody determination and business value determined by Warren Family Court Judge Margaret Ryan Huddleston were reversed and remanded for a new trial.
The trial court rejected any valuation which excluded any goodwill stating that “there is no reported legal authority for the distinction in goodwill” (personal v. enterprise). “To the contrary, it is generally accepted in Kentucky that the goodwill of a closely held corporation should be assigned value in a dissolution proceeding,” citing to Drake v. Drake, 809 S.W.2d 710 (Ky.App. 1991), Clark v. Clark, 782 S.W.2d 56 (Ky.App. 1990), and Heller v. Heller , 672 S.W.2d 945 (Ky.App. 1984), in support of this proposition.”
The Court of Appeals noted “While we acknowledged that ‘the goodwill contained in a business should be considered when arriving at the value of a practice,’ Id. at 55, citing Heller, 672 S.W.2d at 947 (Emphasis added), we rejected the argument that Heller held that all businesses have goodwill. Id. Consequently, we upheld the trial court’s decision to not include an amount for goodwill in valuing the appellee’s medical practice, concluding that the trial court’s decision was supported by substantial evidence, Id. at 56.”… The question therefore arises as to whether the court gave appropriate consideration to the issue and properly exercised the discretion afforded to it in matters of valuation. See Clark, 782 S.W.2d at 60, citing Platt v. Platt, 728 S.W.2d 542 (Ky.App. 1987). We believe that it did not. As the court was laboring under the misconception that providing a value for goodwill was compulsory in reaching its decision, we believe that it cannot be said that the court exercised its discretion appropriately.”
Here is the meat of the decision on this issue:
“After considering the issue and the facts of this case, we are not inclined to deviate from long-standing precedent by creating a wholesale change of law holding that “personal” and “enterprise” goodwill should be distinguished for purposes of property evaluation in a divorce proceeding – even given that Gaskill’s practice is a sole proprietorship. Issues of stare decisis aside, we believe that “[i]t would be inequitable to hold that the form of the business enterprise can defeat the community’s interest in the professional goodwill. Such a result ignores the contribution made by the nonprofessional spouse to the success of the profession ….” Mitchell v. Mitchell, 732 P.2d 208, 211 (Ariz. 1987).”
The problem in the facts before the Court of Appeals in this case was that the non-professional spouse was actively involved in the business. So, while the contributions of the non-professional spouse may be quite relevant to the facts of this case, they usually are not. I agree with Senior Judge Lewis G. Paisley, sitting as Special Judge, who stated in his Concurring Opinion “I believe she makes a compelling case that ‘personal’ goodwill should not be considered marital property to be divided between the parties. I believe, however, that this is a matter to be addressed to our Supreme Court.”
So now what will retired Justice James E. Keller, counsel for appellant on appeal, do next? He won a reversal and new trial for his client on the child custody issue because the trial court relied on hearsay, and he won on the ruling that the court should have considered introduction of a prior inconsistent statement made by a psychologist to another psychologist. I cannot ever recall seeing a party asking an appellate court to bifurcate issues, but it sure would be nice if he could take the Court of Appeals ruling back to the trial court for the new trial on the custody issue, yet file a motion for discretionary review in the Kentucky Supreme Court on the goodwill issue. The timing would be pure gold in that the Kentucky Supreme Court recently accepted discretionary review in another divorce case involving goodwill.

Com., Cab. For Health & Family Services v. Byer, 173 SW3d 247 (Ky.App,. 2005)

Com., Cab. For Health & Family Services v. Byer,
173 SW3d 247 (Ky.App,. 2005)
Cabinet for Health & Family Services was a party to the action
because it initiated dependency action, but trial court order
directing the Cabinet to pay expert witness fees was reversed
because KRE 760(A) requires a court to enter a show cause order
why expert witnesses should not be appointed when the court
desires to appoint its own expert. This process guarantees the
parties will have notice and an opportunity to be heard.