Divorce Law Journal

Not Error To Fail To Dismiss Domestic Violence Action Upon Victim's Request: Ky Court of Appeals Published Opinion September 30, 2016

MOORE V. MOORE

Trial Court held a bifurcated DVO hearing on a severe domestic violence incident between Husband and Wife. At the first hearing, Wife testified she was afraid of Husband and gave detailed testimony about the violent incident. After contact with Husband’s family, at the second hearing, Wife read a statement asking the Trial Court to dismiss the matter. The Trial Court issued a DVO against husband. Husband appealed arguing that “the trial court abused its discretion when it failed to grant appellee’s  [Wife’s] motion to voluntarily dismiss the DVO.”

The rules for dismissal are set forth in CR 41.01. Automatic dismissal shall be granted when the Petitioner files “a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs” or files “a stipulation of dismissal signed by all parties who have appeared in the action.” CR 41.01(1) The Court of Appeals holds that this case did not fall under CR 41.01(1), because Wife never filed anything, she simply read a statement into the record.

CR 41.01(2) allows dismissal at the discretion of the trial court. Factors the Trial Court should consider before granting the dismissal are set forth in the Supreme Court case of Sublett v. Hall. Sublett v. Hall, 589 S.W.2d 888 (Ky. 1979). Holding that domestic violence cases “involve different considerations than general civil cases” the Court of Appeals held that is was proper for the Trial Court to consider factors outside of those listed in Sublett. Thus, the Trial Court did not abuse its discretion by  denying Wife’s motion to dismiss the action noting that the Trial Court found Wife had contact with Husband’s family which “dramatically changed” her position.

Husband also argues that the Trial Court erred “when it found sufficient evidence in the record that domestic violence ‘may again occur’ under KRS403.740(1).” The Court of Appeals first reiterates that “a singular act is never sufficient to support a finding that domestic violence may recur without some additional indication, however small, that domestic violence may recur,” but ultimately holds that the Trial Court did not err in finding sufficient evidence domestic violence might occur again given the severity of the underlying event, as well as fact that the parties lived together, and Husband’s failure to obtain treatment for substance abuse.

Digested by Elizabeth M. Howell

Late motion to alter, amend or vacate custody decision when neither party received Order within 10 days from entry - Published Opinion from Ky Court of Appeals

HOFFMAN V. HOFFMAN

The trial court entered an Order reducing maintenance which neither party received until twelve days after the Order was entered. Wife filed a motion to alter, amend, or vacate pursuant to CR 59.05, CR 60.01 or CR 60.02. The trial court found that no fault could be attributed to Wife for the late filing of her motion, but concluded it had no discretion to consider her motion stating it had lost jurisdiction after ten days expired.

The Court of Appeals held that the trial court retained jurisdiction to consider Wife’s motion as it is “well within the rule’s stated grounds and the authority of the court to invoke CR 60.02 when a clerk is responsible for a mistake that prevents a party from receiving notice of the entry of an order or judgment.” The Appellate Court notes it cannot grant Wife relief on the basis of CR 59.05 alone, as it’s interlocutory in nature, but may grant relief pursuant to CR 60.02.

Digested by Elizabeth M. Howell

Custody appeal dismissed where notice of appeal was not amended to include ruling on post-judgment motion. Ky Court of Appeals Published Opinion

BROOKS V. BYRD

Mother filed an appeal from a custody order while a post-judgment motion was pending. After the filing of the appeal, the trial court ruled on the post-judgment motion entering findings of facts, conclusions of law, and a custody/visitation order. Mother did not amend her notice of appeal and the post-judgment documents were not included in the certified record. Therefore, the Court of Appeals declined to enter a ruling on the merits and dismissed the appeal for noncompliance with CR 73.02(1)(e) (ii) which states “A party intending to challenge a post-judgment order listed in this rule, or a judgment altered or amended upon such motion, must file a notice of appeal, or an amended notice of appeal, within the time prescribed by this rule measured by the date of the CR 77.04(2) docket notation regarding service of the order disposing of the last such remaining motion.”

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals:Burden of proof that child support has been paid rests on obligors

SALLEE V. SALLEE

The Appellate Court vacated and remanded the Family Court’s denial of a Motion for Contempt for Father’s failure to pay child support. The Family Court incorrectly placed the burden of proof on the Mother/obligee to prove an arrearage was owed. Once the child support obligation is established, the child support obligor, in this case Father, carries the burden of proof. The Family Court also failed to make the findings of fact required by CR 52.01.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals: Written Findings Required in Domestic Violence Proceedings

BOONE V. BOONE

The mandate for written findings of fact and conclusions of law applies to DVO cases. CR 52.01 and KRS Chapter 403, along with the holding in Keifer, require findings in family law cases be reduced to writing. DVOs affect child custody, therefore they fall within the purview of CR 52.01. In this case, although adequate findings were made orally from the bench, the Appellate Court remands the case to the Trial Court for written findings of fact and conclusions of law.

Keifer v. Keifer, 354 S.W.3d 123, 126 (KY. 2011).

Digested by Elizabeth M. Howell

 

Published Family Law Opinion from Ky Court of Appeals Today

Farrar v. Farrar

The parties’ Settlement Agreement included a provision for the sale of the marital residence. When husband rejected an offer for the purchase of such residence and asserted he intended to buy the home, the trial court ordered wife to sign a quitclaim deed over to husband. For her equity in the home the Trial Court awarded wife the value of half of the offer for purchase of the home less hypothetical closing costs. Wife appealed the Trial Court’s calculation of equity in the home, as well as other matters.

Wife first challenged the Trial Court’s jurisdiction to amend the parties dissolution decree without making the required CR 60.02 findings. The Appellate Court  held this argument was waived because it was not brought up prior to the appellate action. The Appellate Court reiterated the Supreme Court’s holding in Commonwealth v. Steadman that while subject-matter jurisdiction cannot be waived, case specific jurisdiction, jurisdiction over a particular case where the court has jurisdiction of the general matter, can be waived.

The Appellate Court next addressed husband’s claim that wife’s argument is estopped by deed. Although wife executed a quitclaim deed and accepted payment from husband, the Appellate Court held wife did not waive her right to appeal. The court looked to the general support for preservation of the right to appeal and wife’s action, which was in compliance with the trial court’s order. Additionally, the Appellate Court held that the acceptance of payment did not waive the right of appeal. AlthoughComplete Auto Transit  holds that a party who accepts payment on a judgment is estopped from pursuing an appeal to reverse that judgment, the Appellate Court held Complete Auto Transit does not apply to “acceptance of monetary payments in dissolution proceedings where there is no disagreement or dispute concerning whether the accepting party was entitled to at least the amount accepted and the only issue on appeal concerns whether the accepting party is entitled to additional money.”

The Appellate court concluded that it was an abuse of discretion for the trial court to use hypothetical closing costs to reduce the amount of equity wife received when husband was keeping the house and had no immediate plans to sell. Including closing costs in equity calculations is only appropriate when “(1) the receiving spouse plans or intends an imminent sale of the property without delay; and (2) credible and reliable evidence supports the estimated costs of sale.”

The Trial Court awarded wife attorney fees because husband willfully and deliberately violated the parties’ settlement agreement. The Appellate Court remanded to Trial Court because the Trial Court did not make a finding about financial circumstances which is required in awarding attorney fees. The Appellate Court upheld the Trial Court’s decision not to impose CR11 sanctions, as wife’s motion was well grounded in law.

 

Ky Published Family Law Opinion from Court of Appeals Today

Lambe v. Weber

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

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

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

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

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

 

 

 

 

Publshed Family Law Opinion from Ky Supreme Court Today

Rumpel v. Rumpel

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

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

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

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

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

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

Three Published Family Law Opinions from Ky Court of Appeals Today

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

 

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

 

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

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

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

To Be Published:   Affirming  

County:  Laurel

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

FACTS:

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

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

ANALYSIS: 

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

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

FC Affirmed.

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

 

Digest of Shafizadeh, multiple issues, Ky Court of Appeals

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

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

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

County:  Jefferson

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

FACTS:

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

ISSUES AND ANALYSIS:

Jurisdiction: 

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

Dissipation and Request for Findings of Fact:

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

Maintenance:

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

Child Support and Imputation of Income:

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

Attorney Fees:

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

Modification of Child Custody and Timesharing:

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

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

Garnishments:

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

CR 60.02:

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

Affirmed in Part, Reversed in Part, and Remanded.

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

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

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

Published:   Striking Appellant’s Brief and Dismissing Appeal   

County:  Laurel

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

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

Affirmed.

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

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

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

Issue:  Rule 60.02 motion, personal jurisdiction

Published:   Reversing and Remanding   

County:  Anderson

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

FACTS:

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

ANALYSIS:

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

Reversed and Remanded.

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

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.

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

Lee v. George

2011-SC-000265-MR

Published:   Affirming  

County:  Jefferson

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

FACTS:

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

ANALYSIS:

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

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

First class of writs:

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

Second class of writs:

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

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

Affirmed.

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

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

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

Published:   Reversing and Remanding

County:  Greenup

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

FACTS:

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

ANALYSIS:

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

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

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

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

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

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

Reversed and remanded to FC. 

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

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

Larry Willis v. Ruby Willis

No. 2010-CA-002328-MR

Published: Opinion Reversing

County: Boyle

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

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

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

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

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

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

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

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

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

 

 

 

 

 

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

Kathy Joan Copas v. Richard Dale Copas

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

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

County:  Shelby

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

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

Mitchell, et al. v. Mitchell

2010-SC-000722-DG

Published:  Opinion Reversing and Remanding

County:  Fayette

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

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

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

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

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

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

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

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

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

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  

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.

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.

 

Bennett v. Bennett, Ky COA, Child Support Modification, Arrearage, Emancipation, Exceptions to Commissioner's Report

Bennett v. Bennett – No. 2010-CA-001016-ME

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

County:     Scott

Robert Bennett appealed an order of Scott Family Court (formerly Scott Circuit Court), denying his motion to modify child support and calculating a child support arrearage of $35,038.14 in favor of Theresa Bennett.

The first issue was whether the trial court committed reversible error when it adopted the Scott County Domestic Relations Commissioner’s report without allowing exceptions to be taken and without a hearing.  The Court of Appeals found that the Trial Court failed to comply with CR 53.06 (1) and (2), committing reversible error and remanded for a hearing and consideration of exceptions.

The second question was whether the court erred by denying Robert’s motion to modify child support beginning on the date of filing the motion, prior to which two of the three children covered by the existing order were emancipated.  The Court of Appeals found this was error and on remand the Trial Court can consider the changed circumstances and determine obligation for the period following date of filing motions.

The final question was whether the Trial Court erred in calculating the child support arrearage accruing prior to the filing of Robert’s motion by refusing to consider emancipation of fewer than all the parties’ children.  The Court of Appeals concluded the Trial Court did not err in this regard, but noted that the Trial Court calculated the total arrearage as though Robert’s support obligation did not change even after he filed his motion to modify.  If proper consideration given to Robert’s motion to modify results in change in the obligation for the period from June 16, 2005 to May 31, 2006, the total arrearage will have to be recalculated.

When the parties were divorced, they agreed Robert would pay $225 per month, per child, until each child’s death, marriage or emancipation.  When the oldest child emancipated, the parties agreed Robert would pay $870 per month for the remaining three children, instead of a “per child” amount.  Upon emancipation of the second child, Theresa did not respond to Robert’s attempt to calculate a new amount, so he unilaterally reduced the amount by one-third.  When the third child emancipated, Theresa again failed to respond to Robert’s attempt to recalculate, so he again reduced the amount by approximately one-half.

For over five years, child support was not addressed. When Robert filed a motion in Jefferson County in 2005 to amend child support and determine arrearages, venue was changed to Scoot County where Theresa and the remaining minor had moved.  There is no record of a hearing before the Domestic Relations Commissioner or the filing of a report by the Domestic Relations Commissioner.  In November, 2006 however, the Trial Court adopted the Domestic Relations Commissioner’s recommendations, denying Robert’s motion and finding arrears of over $35,038.14.

During the next three years, hearings were set, canceled, and rescheduled.  Family Court was established in Scott County in 2007.  A hearing was finally set on the County Attorney’s Motion to Enforce Child Support Order and all pending motions were heard in August, 2009.  In May, 2010, the Trial Court found that Robert had failed to appeal the denial of his motion to reduce child support and granted Theresa’s motion to enforce the November, 2006 determination of arrears in the amount of $35,038.14.  Robert then filed this appeal.

The Court of Appeals found, in answer to its first question, that the Trial Court failed to afford the parties the opportunity to file objections to the Domestic Relations Commissioner’s report and have a hearing, and remanded for additional proceedings.

With respect to Trial Court’s denial of Robert’s motion regarding child support payments accruing after the filing of his motion, the Court of Appeals concluded the Trial Court abused its discretion and ordered that Robert’s obligation for support of the youngest child should be recalculated from June 16, 2005 (the date of Robert’s Motion) until her emancipation on May 31, 2006.

The Court of Appeals found no abuse of discretion in Trial Court’s denial of Robert’s motion to modify child support which accrued prior to filing the motion, citing Price v. Price, 912 SW2d 44, 46 (Ky. 1995) which held that “child support can only be modified prospectively.”  The only exception is when the parties have an enforceable agreement, which Robert argued was the case.  On remand, the Trial Court shall consider whether evidence exists to satisfy the Price requirements.  Arguments based on estoppel and unjust enrichment are foreclosed by Price.

The Court discussed Robert’s final argument at length in which he claimed KRS 403.213(3) established automatic modification to his child support obligations.  The Court of Appeals agreed that the statute terminates child support upon a child’s emancipation, the obligation must be distinquished from any other obligation in the same order.  When a support obligation covers multiple children, the emancipation of fewer than all of them constitutes the required “material change in circumstances that is substantial and continuing,” but the obligor must return to court so the obligation can be distinguished.

Robert failed to file a motion when the two older children emancipated, and unless he can establish that he and Theresa agreed to reduce the amount, he is barred from a retroactive modification.  Since the case is remanded to the Trial Court, the Court of Appeals ordered the Trial Court to recalculate the arrearage, if necessary, consistent with the findings in this Opinion.

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

C. C. v. Cabinet for Health and Family Services, Ky S. Ct., Application of Rules of Procedure in Dependency cases

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

2010-SC-000395-DGE

Published:   Reversing, vacating and Remanding

County: Lewis

Mom appealed from FC's order removing Children from her custody based on a finding of neglect, contending that the Rules of Civil Procedure applied to proceedings prior to the adjudication in dependency hearings and that FC committed error by denying Mom discovery of relevant information and documents prior to the adjudication hearing. 


I. Background

Based upon information from 5 year-old Child and photographs of Child's injuries, and after Mom refused to cooperate in Social Worker's investigation of abuse complaint, Social Worker filed juvenile petitions in FC alleging that Child and her younger sibling were abused and requested and received Emergency Custody Orders removing Children from Mom's custody.  When Social Worker and State Trooper arrived at Mom's home to remove Children, Mom came storming out of the home, screaming that Child was a "liar" and a "thief" and that she would "holler rape" if the trooper touched her. Trooper then arrested Mom on an unrelated outstanding warrant and Social Worker took Children into her custody.  At Temporary Removal hearing, Mom admitted calling Child "liar" and "thief" but informed FC that she had ADHD and manic-depressive disorder and had not been taking her medication; Boyfriend admitted spanking Child.   Social Worker also testified about her investigation, but because she did not bring photos of Child's injuries with her, they were not introduced into evidence.  FC entered temporary order removing Children from Mom's custody and scheduled adjudication hearing.  The following day, Mom's counsel served the County Attorney with interrogatories and requests for production of documents regarding the witnesses and exhibits that would be used by the County Attorney at the adjudication hearing; the request cited KRS 620.100 as making the Civil Rules applicable to the action. The County Attorney responded that KRS 620.100 applied only to the adjudication hearing itself, not pre-hearing matters, but that the Commonwealth would agree for FC to enter an Order permitting Mom's counsel to inspect all of Cabinet's relevant records. 

FC did not hear the discovery issue until the day of the scheduled adjudication hearing. Because of FC's concern that Mom would have access to confidential documents, FC ordered the parties to submit briefs on the issue within ten days and rescheduled the adjudication hearing.
After submission of briefs, FC eventually denied the discovery request, holding "that KRS 620.100(3) applies to the adjudication hearing and not to pre-adjudicative matters." FC subsequently held adjudication and disposition hearings, found Children to be neglected, and ordered that Children remain out of Mom's custody.

CA affirmed, holding that nothing in the Uniform Juvenile Code requires application of the Civil Rules prior to the adjudication hearing, and noting that pre-hearing applicability of the rules would be impractical or impossible, given the short time frames for resolution of these cases. CA also held that Mom's rights were otherwise adequately protected. Lastly, CA found that Mom could have examined the photographs and other documentary evidence had she chosen to do so even without the statutory right to such examination, given Commonwealth's agreement to her access to the Cabinet's records.  However, SC noted that this contention was incorrect because although Commonwealth agreed to entry of an Order, no Order was ever entered. 

SC granted discretionary review to determine whether Civil Rule discovery prior to the adjudication hearing is allowed in a dependency, neglect, or abuse action.

Analysis

Civil Rules provide that they are applicable to all civil actions, which includes DNA actions, unless those rules conflict with rules provided under "special
statutory proceedings." DNA statutes meet the definition of special statutory proceedings because they provide a complete procedural framework within the statutes. 

Although discovery under the Civil Rules can take much longer than the DNA time frames, this does not present a conflict between the statutory requirements of DNA actions and the Civil Rules, as both allow for flexibility as to time frames. FC has the power to control the timing and sequence of discovery both with regard to the civil rules and per DNA statute.  Thus, there is no direct conflict between the statutes and rules.  Moreover, by statute, the Civil Rules apply to DNA actions. KRS 610.080(2) states that the Civil Rules apply to the "action." This encompasses not just the adjudication portion of the action, but the entire action, which also includes the temporary removal hearing and the disposition hearing, with no exceptions.

SC noted that there may be a conflict between the Civil Rules and the DNA statutes under other circumstances.  In those instances, because DNA actions are "special statutory proceedings," their time limits will trump those in the Civil Rules where a conflict arises. Nevertheless, a participant in a DNA action is entitled to the benefit of the Civil Rules, including the discovery provisions, so long as there is no conflict with the Juvenile Code. Though this may not mean access to the full range of discovery tools, since a judge may or may not be convinced that a time frame needs to be changed, it means at least reasonable access to the discovery procedures.  Thus, Mom was improperly denied access to the discovery provisions of the Civil Rules and therefore was deprived of due process.

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

Age v. Age, Ky COA, Validity of Marriage, CR60, Maintenance, Attorney Fees

Age v. Age, No. 2009-CA-001982-MR

and

Reid (formerly Age) v. Age, et al, No. 2009-CA-002173-MR

Published:  Affirming

County:     Oldham

 

        Reid filed a petition for dissolution of a 33-year marriage in November, 2006.  After entry of the decree in June, 2008 the parties filed a settlement agreement which had been executed in April, 2008.

 

        More than a year after the decree was entered, Age filed a motion to set aside the decree based on Reid’s statements in obtaining a theological annulment by the Roman Catholic Church.  That motion was denied.  In August, 2009, Age filed a CR 60.02 motion to set aside the judgment on the grounds of mistake, fraud, and new evidence.  On September 3, 2009 the TC entered an order denying the post-judgment motion and also denied Age’s subsequent motion to reconsider.

 

        Reid’s cross-appealed on the issues of maintenance and attorney fees.  Reid never earned more than $7,000 annually, while Age earned $188,000 in 2008.  She contended that after consideration of the relevant statutory criteria, the court’s award of maintenance was inadequate.  She further maintained that the court should have made findings before ordering her to pay additional fees to her attorney and also when the TC denied reimbursement by Age to Reid of these attorney fees, which she claimed was an abuse of discretion.

 

        By agreed order, temporary maintenance was set at $750.00 per month.  Under the terms of their settlement agreement, Reid waived maintenance but negotiated for one-half of Age’s pension payment which she expected would be approximately $2,300 per month.  In an addendum to the April, 2008 agreement, Age agreed to pay Reid $2,300 per month until she began to receive pension payments from Abbot Laboratories pension administrator.  The court ordered the parties to enter into a QDRO to facilitate Reid’s receipt of pension benefits. 

 

        At a hearing in January, 2009 it was discovered that Reid’s pension benefits would only be $953.74 per month.  This gave rise to continued dispute about the issue of spousal support.

 

        On October 22, 2009, TC entered an order finding the settlement agreement unconscionable because of the waiver of spousal support and the pension benefit insufficient to meet the minimum needs.  TC awarded maintenance until Age’s retirement when Reid will be entitled to one-half Age’s pension.

 

        Reid’s former counsel filed an attorney’s lien for unpaid fees and TC ordered Reid to pay the fees in installments.  TC denied Reid reimbursement of any fees from Age based upon her assertion that his post-judgment motion was frivolous and vexatious.

 

        Regarding the validity of the divorce decree, the CA found no evidence to suggest the parties were not lawfully married.  The Catholic Church’s determination under ecclesiastical law does not alter the legal effort of a civil marriage.  None of the reasons to invalidate a marriage as set out in KRS 403.120 applied in this case.

 

        CA held that Age’s CR 60.02 motion was not timely filed, there was no evidence of civil fraud and the Constitution prohibits an interface between church and state law.

 

        Reid claimed the TC abused its discretion when it set maintenance at $2,300 per month to be reduced when Reid’s pension benefits commenced.  The CA found that the TC made relevant findings and used the factors enumerated in the statute to determine the maintenance award.

 

        The CA reviewed Reid’s appeal of the issue of reimbursement of attorney fees despite procedural infirmities regarding the notice of appeal.  Holding that a TC’s decision regarding KRS 403.220 may only be overturned if an abuse of discretion occurred, the CA found no indication the TC’s ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  To Reid’s contention that the TC failed to make adequate findings, the CA disagreed and found that the trial judge exhaustively covered the division of assets and did not omit any findings essential to its judgment.

 

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

One Published Family Law Opinion From Ky Supreme Court Today

C.C. v. Cabinet for Health and Family Services, et al. Kentucky Rules of Civil Procedure apply to all phases of dependency , neglect and abuse actions , including temporary removal hearing portions, so long as not in  conflict with the Juvenile Code. At least reasonable access to discovery must be permitted.  Statutory procedural requirements prevail over inconsistent civil rules procedures.

Digest to follow.

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

 

Mitchell v. Mitchell, Ky COA, Civil Procedure, Attorney Fees

Mitchell v. Mitchell, 2009-CA-001856-MR

Published:   Reversing

County: Fayette

         Appellant appealed from Circuit Court Order awarding Appellee attorney fees, expert fees, and costs incurred as a result of his motion to modify maintenance.  The CA agreed with argument that TC lacked jurisdiction to enter the Order and reversed.

         Parties were divorced in 1990 after 24-year marriage.  In the divorce agreement, Appellant agreed to pay $3,000 a month in maintenance until Appellee remarried or one of the parties died.  The agreement provided that if Appellee became more employable due to education she received with appellant’s financial assistance, this could be grounds for modification.  Appellee earned a bachelor’s degree in 1995.  In October, 2008, Appellant filed a motion to modify maintenance.

         June 9, 2009, Appellee filed a motion for attorney fees and costs related to her defense of the motion to modify maintenance.  On June 22, 2009, TC heard testimony on both motions.

         On June 30, 2009, TC entered order finding that Appellant failed to establish sufficient grounds to support modification and denied the motion, and indicated the ruling was final and appealable.  No appeal was taken.  Appellee’s motion for fees was not addressed.

         On July 1, 2009, Appellee’s attorney emailed the judge’s law clerk inquiring how to proceed with respect to the motion for fees, and on July 8, 2009 the clerk responded “I am on this, give me a day or two.”

        On August 13, 2009, the judge’s secretary informed Appellant about the ex parte communication between Appellee’s attorney and the law clerk.  Appellant’s counsel was advised that Appellee’s counsel had been instructed to file an attorney fee affidavit.  Appellant’s attorney would then have a week to file a response, after which the judge would hear arguments on the motion for fees on September 4, 2009.

        Appellant filed an objection to the TC’s consideration of the motion for fees, arguing that the court lacked jurisdiction to award fees and costs at this juncture and that such an award was unwarranted.  On September 4, 2009 the TC heard arguments from counsel, and on September 16, 2009 awarded Appellee $19,161.80 in attorney fees.  The TC found Appellant’s objection  on “technical jurisdictional grounds” to be without merit and stated “… the June 9 motion was not ruled on until this date.”  Thereafter, Appellant filed this appeal.

        Appellant argued on appeal that the TC lacked jurisdiction to rule on Appellee’s motion for fees and costs, that Appellant was prejudiced by the TC staff’s ex parte communication with Appellee’s counsel, and that the award of fees and costs was unwarranted.

         CA agreed with Appellant that the TC’s order denying his motion to modify was final and therefore the TC had lost jurisdiction to enter the subsequent order awarding fees because Appellee failed to timely request additional findings and modification of the Order pursuant to CR 52.02.  The CA concluded the Order was inherently final because the case addressed a single claim which was the motion to modify maintenance.  Appellee’s motion for fees did not constitute a separate claim.

          Because the Order was final, there was a ten-day window during which the TC could modify or Appellee could move for modification of the ruling to include findings and a ruling on her motion for attorney fees.  Appellee did not file a proper post-judgment motion.  The ex parte communication between Appellee’s counsel and the judge’s law clerk was insufficient to toll the time for amendment.  Therefore, entry of the order awarding Appellee attorney fees constitutes reversible error. 

         Appellant’s remaining two arguments were not addressed because the decision on the jurisdictional argument is determinative of the case as a whole.

 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  

Mosley v. Mosley, Ky COA, Amendment of Pleadings

Mosley v. Mosley, 2009-CA-000177-M4

Published: Reversing and Remanding

County:  Pulaski

 

    Wife appealed circuit court’s denial of her motion to amend her response to a petition for dissolution of marriage to include a request for maintenance.

 

    The parties separated in 2003 after eleven years of marriage.  Husband filed petition for dissolution of marriage in July, 2007 and Wife’s response was filed January 8, 2008.  Wife did not request maintenance because she assumed their financial circumstances did not warrant maintenance.

 

    Wife learned when husband filed his brief in circuit court that upon death of his mother in September, 2007, he became sole heir to her $645,000 estate.  In addition, Wife discovered that her portion of husband’s military retirement pension would be only $174 per month and she would have no health care coverage after the divorce.  Wife filed a motion to amend her response to include a request for maintenance because Husband’s assets were greater than she had believed.  Husband appealed the motion arguing the amendment would unduly delay the final decree and undue prejudice.  The circuit court denied Wife’s motion.

 

    The Court of Appeals first reviewed CR 15.01 which states that leave to amend “shall be freely given when justice so requires.”  While a trial court has discretionary power, it cannot exercise that discretion so as to deprive litigants of a just result.

 

    Kentucky has adopted the view that the rule should be liberally construed.  Citing Stout v. City of Martin, 395 S.W.2d 591 (Ky. 1965) the Court noted:

 

If no problem of relation back is involved, the question for the court is not whether a new and independent claim as ‘cause of action’ is pleaded by amendment but whether the just and expeditious disposition of the controversy between the parties will be advanced by permitting the amendment.  Barron & Holtzoff, Federal Practice and Procedure, §448 (Vol. 1A, p. 752).

 

    Here the Court of Appeals reasoned that the time required to resolve the maintenance issue would not prejudice Husband, and if Wife is entitled to maintenance, the injustice to her by denying her motion to amend her response is far greater than that to Husband by permitting the amendment.

 

    Reversed and remanded for entry of an order permitting Wife to amend her response to include a request for maintenance.

 

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

 

 

 

 

Proposed Kentucky Family Court Rules of Practice and Procedure

Here are the proposed rules: Download Proposed New Family Court Rules. The Kentucky Supreme Court will hear comments at the June annual convention in Lexington.

Sanctions Against Self-Represented Party

There are no published family law opinions released by the Kentucky Court of Appeals today. However, there is a published decision that will interest family law practitioners. Lattanzio v. Joyce discusses permissible sanctions that may be imposed upon pro se litigants. We will not be digesting this one, but you may click on the link to read the opinion.

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  

Snodgrass v. Snodgrass, Ky COA, CR60.02(f), Military Retired Pay

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

 

 In divorce proceedings, the parties agreed on all issues, except for the division of husband’s military retirement.  Husband served in the military for approximately 4 years prior to the parties’ approximate 14 year marriage.  A hearing was held before a Domestic Relations Commissioner on the division of retirement benefits; however, there is no proof in the record that husband actually received notice of it, waived his right to participate in it, waived his right to have the hearing recorded, or waived any other right or protection on account of his military service.  Husband was deployed overseas during the proceedings and unrepresented by counsel.  The trial court adopted the DRC’s recommendations and awarded the wife 46% of husband’s retirement.  No further activity took place on this matter for over six years.  Eight months prior to husband’s retirement, the wife submitted a form to DFAS requesting 46% of husband’s disposable retired pay, with no distinction between marital and nonmarital portions.  This translated to wife receiving 82% of the marital portion of the benefit and husband receiving 18%.  It was not until his retirement that husband realized something was wrong.  He hired counsel and filed a motion for relief pursuant to CR 60.02(f).  Due to several procedural and substantive delays, husband’s motion was not heard for another year and a half.  The trial court denied his motion, except it did prohibit the wife from receiving any portion of the benefit attributable to husband’s post-divorce increases in rank and pay.  Husband appealed.

    There are three factors that must be met in order to obtain relief under CR 60.02(f):  1) none of the provisions of CR 60.02 (a)-(e) apply, 2) whether the moving party had a fair opportunity to present his claim at the trial on the merits, and 3) whether the granting of relief would be inequitable to other parties.  COA found all three factors weighed in husband’s favor: 1) No evidence supports the applicability of CR 60.02 (a)-(e), 2) Husband lacked the opportunity to be present at the hearing, and 3) Granting relief would not be inequitable to wife because the court had already held that she is only entitled to a share of the marital portion of the retirement benefit and husband did not seek more than that.

    The decree that originally awarded wife 46% of the retirement benefits contained no distinction between marital and nonmarital property.  Therefore, the decree conflicted with the court’s order denying CR 60.02 (f) relief, which states that wife is only entitled to a share of the marital portion of the benefits, and must be corrected.  The decree is also problematic since it did not explicitly first assign each spouse their nonmarital property before dividing the marital property.  As a result, it is unclear what the decree intended the outcome to be for the division of military retirement benefits.  The COA came up with four different possibilities, and narrowed it down to two using logic and the law: 1) the trial court intended to award wife 46% of the marital portion and 0% of the nonmarital portion, or 2) the trial court intended to award wife 46% of the benefit earned up to the point of divorce, but not what husband earned after the divorce.  The COA remanded for the trial court to determine how the decree should be corrected and/or clarified.  The COA referred the trial court to DFAS’s pamphlet entitled Uniformed Services Former Spouses’ Protection Act, Dividing Military Retired Pay for guidance and recommended language.  When dealing with the division of military retired pay of an as-yet-ineligible service member, COA found the language in section IV.c. of the pamphlet regarding “hypothetical awards” to be consistent with Kentucky law. 

Next, COA noted that although husband chose to proceed unrepresented by counsel, he was still protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940.  Thus, even when a service member does not ask for a stay in the proceedings, the Act requires that the trial court determine that the military service of the party would not have a material, adverse effect upon his rights before going forward.                    

Finally, COA did not find error in the fact that husband had not appealed the decree or that he waited years to file a CR 60.02 motion.  The decree on its face seemed to accomplish what husband wanted and he only realized the error shortly before he retired.  Husband promptly acted upon finding the error. 

Digested by Sarah 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

Lawson v. Lawson, Ky COA, Marital Settlement Agreement, CR 60.02 Corrected)

Oops! Wife received $24 million in the settlement. What's another $20M?

 

 Lawson v. Lawson, ___S.W.3d __ (Ky.App. 2009); 2008-CA-000824-MR

 The parties divorced in 2006.  The wife sought and received an expedited divorce without conducting discovery into the extent of the marital estate.  In the settlement agreement, wife received approximately 4 million dollars of assets and immediately began accepting the benefits of same following the divorce.  Eleven months later, wife filed a CR 60.02 motion challenging the separation agreement based on claims of intimidation, overreaching and/or mental incompetence.  The trial court denied her motion for three reasons:  1) the claims of intimidation, overreaching and/or mental incompetence were unsupported, 2) even if her claims were true, she ratified the agreement by continuing to pursue the benefits of it, and 3) the CR 60.02 motion was not brought within a reasonable amount of time.  Wife appealed.

The COA affirmed.  The trial court did not abuse its discretion in finding that her claims were unsupported or that the motion was not brought within a reasonable time period.  Wife had testified to the trial court that the agreement was fair, the record showed that the parties had negotiated the terms of the agreement, and her attorney had written the wife letters, which wife had signed as well, explaining all the risks of signing an expedited settlement agreement.  The COA did not address whether wife had ratified the agreement by her actions. 

Senior Judge Harris, Concurring opinion:  The majority reached the right result.  However, had the CR 60.02 motion been timely presented, the trial court would have had to grant the wife an evidentiary hearing on her mental capacity claim and then render a specific finding of fact as to her mental capacity at the time she signed the agreement. 

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

Stipp v. Charles, Ky COA, Venue, Division Of Marital Property, Amount Of Maintenance

STIPP V. CHARLES

TO BE PUBLISHED:  AFFIRMED

PANEL:  ACREE PRESIDING; NICKELL AND KNOPF CONCUR

COUNTY: JEFFERSON
DATE RENDERED: 7/2/2009

 

Ex-Husband appealed TC’s order finding that he waived his objection to improper venue and dividing marital assets and awarding maintenance, claiming error.   

 

FACTS:

 

The parties separated after 20 years of marriage.  They had one teenage child.  At the time of separation, the parties resided in Oldham County near the Jefferson County line.  The most Ex-Husband earned in one year was about $35,000, while Ex-Wife was earning $235,000 at the time of separation in addition to receiving bonuses, stocks, and stock options.  Ex-Husband did not work and provided primary care for the parties’ son for a period of time. 

 

Ex-Wife filed for divorce in Jefferson County.  Subsequently, she filed a domestic violence petition in Oldham County and an emergency protection order was entered.  Ex-Husband filed his response to the divorce petition in Jefferson County, noting that neither party resided in Jefferson County and that the proper venue was Oldham County; but rather than objecting to the venue, stated that he “reserves the right to ask [the] court to transfer [the] case to the Oldham Circuit Court.”  He then filed his mandatory case disclosure in Jefferson County. 

A case management conference was scheduled by the Jefferson family court and mediation was also scheduled.  Both parties also filed other motions with the Jefferson court, as well as an Agreed Order dismissing the Oldham County domestic violence order.  Only after these filings did Ex-Husband then file a motion requesting a transfer of the case from Jefferson County to Oldham County on grounds of improper venue. The Jefferson family court proceeded with the case management conference, finding the motion for transfer to be untimely and denied it on that basis.  After final hearing, the Jefferson family court awarded Ex-Wife 57% of the marital assets and 43% to Ex-Husband, awarded Ex-Husband maintenance of $2,000 per month for a period of six Years, and required Ex-Wife to continue providing health insurance coverage for Ex-Husband through COBRA for three years, which the court reduced to eighteen months in response to Ex-Wife’s motion to alter, amend or vacate, as this was the period of allowable coverage under Ex-Wife’s health insurance plan.

Ex-Husband then appealed.

 

ANALYSIS:

 

Venue.  At the time the case was filed, Oldham County was the proper venue. 

“Improper venue” is a defense, CR 12.02(c), which a party must assert, either in a responsive pleading or by motion, within 20 days after service

of the summons upon him/her.  If the defense is not so asserted, it is waived.   As Ex-Husband did not timely raise his objection under the Rules, he waived the objection. 

Furthermore, Ex-Husband availed himself of the Jefferson family court’s time and judicial resources by filing documents with the court and entry of Agreed Orders with that court.   Were the court to allow Ex-Husband’s “reservation” as an assertion of the improper venue defense beyond the time allotted by the Civil Rules, the court would enable a form of forum shopping, allowing a party to subjectively assess how the litigation is progressing before seeking a different venue. If Ex-Husband wanted the case transferred to another county after failing to object to improper venue in his responsive pleading, the legal basis of such a post-pleading motion was the doctrine of forum non conveniens. Even if Ex-Husband’s motion were viewed under this doctrine, the Jefferson family court did not err in denial of the motion, as it had already expended judicial resources in the case and the parties’ residence was far from inconvenient.

 

Distribution Of Marital Assets.  Ex-Husband also claims TC erred by failing to distribute the marital assets equally. CA found that, in determining the division, TC followed the statute and considered “all relevant factors,” including those listed in KRS 403.190(1)(a)-(d), and found no error. 

 

Award Of Maintenance.  Ex-Husband also contended TC abused its discretion by awarding him maintenance of only $2,000 per month for six years. He argued the

CA found that TC properly considered the nature of Ex-Wife’s financial resources, the standard of living established by the parties during the marriage, the duration of the marriage, and the ability of Ex-Husband to meet his own reasonable needs, and found no error.      

 

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

 

 

New Ky Civil Rules Re Subpoenas and Privacy Protections

The new CR 7.03 providing privacy protections and the new CR 45.01-45.05 are here. The revised subpoena form is here. All are effective April 1, 2009. These changes are very significant.

Hines v. Carpenter, Ky COA, Damages From Supersedeas Bond Pending Appeal Of Child Support

UPDATE: The Kentucky Supreme Court denied discretionary review and ordered this case not to be published.

Hines v. Carpenter, _ S.W.3d _ (Ky. App. 2009), 2006-CA-002173-MR

The trial court entered a summary judgment in favor of Hines for back child support owed by Carpenter.  Carpenter appealed the judgment and posted a supersedeas bond to stay the collection of the judgment while the appeal was pending.  The Court of Appeals affirmed the summary judgment in favor of Hines.  Then a QDRO was entered by the trial court, requiring that Hines be paid 50% of Carpenter’s monthly benefit until the sum of $149,495.01 was paid in full, or the Appellants die, or Carpenter dies, whichever first occurs. Hines then filed a motion to compel Carpenter to pay a lump sum of $14,175 for damages allegedly incurred by the posting of the supersedeas bond.  The trial court denied the motion to compel.  This appeal followed.  
   The sum of $14,175 is equivalent to the 21 monthly payments that Hines would have received during the pendency of the appeal.  Hines argued the motion to compel should have been granted because interest on the uncollected judgment was accruing at more than twice the rate of the current monthly payments by the pension plan.  She also argued that the full judgment would never be recouped since Carpenter, who was sixty-two years old at the time the motion to compel was filed, would have to live another 18 years for them to receive just the principal amount of the judgment.  
KRS 26A.300(1) prohibits the collection of damages on a first appeal as a matter of right.  Carpenter’s appeal was his first on this issue.  Therefore, the relief Hines requested was statutorily forbidden.  
AFFIRMED

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

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.

Murphy v. Murphy, Ky COA, Modification Of Custody, Notice

Murphy v. Murphy, --S.W.3d – (Ky. App. 2008), 2007-CA-002298-ME

The parties shared joint custody and equal parenting time of their three children. More than a year after the parties’ last interaction with the court, the father moved to modify custody. He mailed the motion/notice to the mother’s attorney of record. The mother’s attorney of record then filed a Notice of Nonrepresentation, stating that she no longer represented the mother, but had mailed a copy of the motion to her last known address.

The court held the modification hearing without the mother, or any legal representative, present, since the mother had an attorney of record. The father even told the court that the mother’s current address was different than the one her attorney of record had mailed the motion to. The court saw no need to take any proof regarding the change of custody in the mother’s absence, and sustained the motion to grant the father sole custody of the children. The mother only learned of the hearing and order afterwards, when the father contacted her to pick up the children.

About a week after the hearing, the mother finally received the motion/notice that her attorney of record had sent. The next day, the mother filed a pro se motion to alter, amend or vacate the judgment, which the court denied. The parties subsequently entered an agreed order regarding parenting time, allowing the mother weekend and Wednesday night visitation. The mother then renewed her motion to alter, amend, or vacate and asked the court to appoint her a GAL. The court denied both motions. The mother appealed.

The mother’s first claim of error was the court failed to find that the father’s motion for change of custody warranted a hearing. The COA found that the father alleged sufficient grounds to justify a hearing.

The mother’s second claim of error was the court, knowing that notice was highly questionable, erroneously allowed the hearing to go forward without her presence. The COA reversed for lack of notice. Conclusion of the divorce action terminated the attorney-client relationship, therefore service of notice on the mother’s attorney of record did not effectuate service on the mother. In addition, once the attorney filed the Notice of Nonrepresentation, a new hearing date should have been set and service made directly on the mother.

The mother’s final claim of error was the court modified custody without finding a change in circumstances or best interests of the children as required by KRS 403.340(3). As there were no affidavits, no testimony, and no findings by the court, the COA reversed and remanded for a hearing and the statutorily required findings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A HEARING AND FINDINGS.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

BEARDEN V. MAULDIN, CHILD CUSTODY

BEARDEN V. MAULDIN
2007-CA-001888
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: BUCKINGHAM PRESIDING; LAMBERT AND MOORE CONCUR
COUNTY: JEFFERSON

Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.

FACTS:
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and 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 anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.

TC 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 and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found 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. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.

Analysis:
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.
Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.

MCKINNEY V. MCKINNEY, CHILD SUPPORT, FINDINGS OF FACT

MCKINNEY V. MCKINNEY
2006-CA-002132
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON PRESIDING; NICKELL, GRAVES CONCUR
COUNTY: JEFFERSON

Ex-Husband appealed from TC’s order imputing to him a monthly income of $8,000 for the purposes of establishing child support in accordance with the Kentucky Child Support Guidelines.

FACTS:
Ex-Husband and Ex-Wife entered into a Marital Settlement Agreement that explicitly reserved the issues of child support expenses. After hearing, TC entered an order finding that Ex-Husband earned income from part-time work as an attorney but primarily by “flipping” real estate, imputing income to Ex-Husband of $8,000 per month and ordering child support in accordance with the Kentucky Child Support Guidelines. However, TC did not parse out its calculation of Ex-Husband’s imputed $8,000 monthly income. Ex-Husband subsequently filed a CR 59 motion to alter, amend or vacate, as well as a motion pursuant to CR 52.02 requesting additional findings of fact regarding the imputation of $8,000 monthly income. TC denied the motion for additional findings and this appeal ensued.

ANALYSIS:
Ex-Husband argued that there was no evidence submitted to support TC’s imputation of $8,000 in monthly income and that, at a minimum, he was entitled to additional findings as to how TC arrived at the $8,000 figure. Ex-Wife responds that TC, in imputing income to both parties, opted to calculate child support based on the “potential income” of each party and that TC was not required to segregate Ex-Husband’s potential earnings as an attorney from those generated by the real estate. CA found that the standard of review for appellate courts in child support matters is abuse of discretion.

CR 52.01 provides that in all actions tried upon the facts without a jury, the trial court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment. Thus, the issue herein is whether the TC’s omitted finding involves a matter which was essential to TC's judgment. CA found that, other than generally stating that the imputed income was derived from Ex-Husband’s law practice, rental properties and capital gains, TC provided no explanation as to how it reached the $8,000 a month figure. Without adequate factual findings, CA held that TC's decision could not be meaningfully reviewed and that the omitted finding involved a matter which was essential to TC's judgment. Thus, TC erred by denying Ex-Husband’s motion for additional factual findings on this issue and the matter must be remanded for additional findings.

CA’S NOTE TO SC REQUESTING MODIFICATION OF RULES:
“In rendering the decision herein, we are cognizant of the fact that CR 52.01 specifically states that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41.02.” Although the instant appeal arises from “decisions of motions,” the issue of child support was initially raised in Ex-Wife’s petition for dissolution and was only resolved after an evidentiary hearing. Thus, we conclude that the crux of this appeal stems from an action “tried upon the facts without a jury[,]” as set forth in CR 52.01. However, we are also of the opinion that CR 52.01, as currently written, is not only overbroad but illogical. The majority of orders and judgments from TC originate from a motion. Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make -7- findings of fact when ruling on a motion of any kind except as provided in CR 41.022 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review. We would urge our Supreme Court and Rules Committee to review and revise CR 52.01.”
Reversed and remanded.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

One To Be Published Family Law COA Opinion June 13, 2008

McKinney v. McKinney, court imputed income to part-time attorney and real estate “flipper” but did not make finding he was voluntarily underemployed and did not set out more specific findings. Since findings are essential to this judgment, case was reversed for further findings. A digest will follow. There is no link to the case here because the links on the Court of Appeals website are broken again this week. I found the decision by going to this site, searching for "June 13, 2008" and then clincking 2007 CA 349.

Ky Supreme Court Oral Arguments January 16, 2008 In Thomas v. Thomas

Oral arguments in Thomas v. Thomas, digested here, will be held January 16, 2008 at 11:00 a.m. Kentucky Court Report has the links to the briefs and live cam here.

Pursley v. Pursley (KY) Custody Modification; Exceptions to Commissioner's Report

Pursley v. Pursley, —S.W.3d—, 2007 WL 4126464 (Ky. App. 2007).

Dad appealed Family Court’s order modifying joint custody of Daughter to sole custody with Mom, and restricting Dad’s visitation to weekly supervised visitation. Dad alleged that Circuit Court erred by treating the Exceptions he filed as a Motion to Alter, Amend or Vacate and by transferring the case to Family Court.

When Daughter was ten, Mom and Dad divorced and agreed upon joint custody with equal time sharing of Daughter. Two years later, Mom alleged that Dad had engage in inappropriate sexual relations with Daughter and moved for sole custody. The matter was heard by a Domestic Relations Commissioner (“DRC”), who recommended sole custody to Mom with weekly supervised visitation by Dad. Dad timely filed Exceptions to the DRC’s recommendations. Circuit Court entered an Order that it would treat the Exceptions as a Motion to Alter, Amend or Vacate pursuant to CR 59.05 DRC’s recommendation and transfer the case to Family Court. DRC had been elected as Family Court Judge, and in that capacity, he subsequently denied the Motion to Alter, Amend or Vacate. Dad appealed.

CA agreed with Dad. Regarding the Motion to Alter, Amend or Vacate, CA noted that a CR 59.05 motion may only be utilized to seek reconsideration of a “final judgment.” The recommended order of a DRC is not a final judgment, but, rather, a recommendation utilized by the circuit court in reaching a final decision, thus the Motion to Alter, Amend or Vacate was not available at that stage of the proceedings. Considering the procedural posture of this case, CA believed the circuit court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the child custody issue.

As to Dad’s contention that the case should not have been transferred to Family Court, CA noted that while the family court was vested with jurisdiction over domestic issues by Ky. Const., § 112(6) and KRS 23A.100, such jurisdiction was not intended to be exclusive. Rather, the circuit court may, in some circumstances, retain jurisdiction to rule on domestic issues already before it, such as child custody. CA found that this case presented a unique circumstance where the circuit court should have retained jurisdiction and not referred it to Family Court since DRC conducted the proceedings, including an evidentiary hearing pursuant to CR 53.

Mom argued that Dad did not preserve issues for appeal, but CA stated that the gravity of errors claimed was one of substantial proportions, and pursuant to CR 61.02 this error may be considered by CA and the appropriate relief may be granted upon a determination that manifest injustice resulted from the error. CA noted that such an injustice had occurred, because “in a child custody proceeding, there can be no greater injustice to a party than a court failing to comply with applicable statutes and civil rules.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Miller v. McGinty, Attorney Fees, Rules of Civil Procedure

Miller v. McGinty, ___S.W.3d___(Ky. App. 2007)

Ex-husband appealed order of TC requiring him, pursuant to KRS 403.220 and CR 37, to pay $8,500 of attorney fees to Ex-wife, claiming that TC failed to consider the financial resources of both parties as required by KRS 403.320 and that CR 37 and the holding of Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986) were inapplicable to the facts of his case.

When Ex-Wife initially filed her Petition for Dissolution, she was unaware of Ex-Husband’s address. She therefore attempted service through a Warning Order attorney. Darren resided in Utah, was a member of the Air National Guard, and unknown to Ex-Wife, was stationed in Iraq at the time she filed for divorce. The Warning Order Attorney filed his report and, subsequently, a default hearing was held, resulting in TC’s issuance of findings of fact, conclusions of law, and decree of divorce. Ex-Husband then filed a Motion to Alter, Amend or Vacate this Order on the basis that Ex-Husband had not been properly served. TC granted the motion, Ex-Wife served Ex-Husband through Secretary of State, and new trial was held. TC divided property and debts and ordered Husband to pay $8,500 of Ex-Wife’s attorney fees.

Ex-Husband first contended that TC failed to consider the financial resources of the parties before awarding attorney's fees to Ex-Wife. CA noted that although a trial court is not required to make specific findings on the parties' financial resources, TC must consider the financial resources of the parties before ordering an award of attorney’s fees. Further, KRS 403.220 requires a showing of an imbalance in the financial resources of the respective parties. In this case, TC expressly stated that no evidence was submitted concerning the parties' financial resources, requiring the court to make assumptions from evidence submitted regarding the financial circumstances at the time of the marriage as to the status of their financial resources at the time of trial, though the parties had been separated for over 3 years and divorced for 2 years. CA held that the financial situations of the parties during their marriage were too remote in time for the court to make such a finding based on this evidence, and TC abused its discretion in making award of attorney fees without first considering the parties' financial resources at the time that the court entered its order. CA vacated attorney fee award under KRS 403.220 and remanded issue to TC.

Ex-Husband next asserted that TC erred by basing the attorney fee award on the case law of Lampton and CR 37, as they are inapplicable to a party's failure to voluntarily submit to personal jurisdiction. CR 37, which is titled "Failure to Make Discovery; Sanctions," permits a court to award attorney's fees as a sanction against a party who fails to conduct discovery or abide by discovery rules. In Lampton, CA implied that an award of attorney's fees under CR 37 is appropriate if the award is motivated by the party's obstruction of and refusal to cooperate with discovery. In this case, TC provided that an award of attorney's fees under CR 37 was appropriate due to Ex-Husband’s irresponsibility with regard to the parties' financial matters. CA held that this reasoning had no connection to discovery proceedings in the case. Furthermore, Ex-Husband’s failure to submit to TC’s jurisdiction despite his knowledge of the case also held no connection to CR 37 nor merited an award of attorney fees under any rule or statute, as there is no requirement in Kentucky that a defendant submit to the court’s jurisdiction once he gains knowledge of the action. CA reversed any portion of the attorney fee award based on CR 37.

Ex-Husband also alleged that if TC had the authority to award attorney's fees in this case, the reasonableness of the fees awarded was improperly analyzed by TC. CA held this claim to be moot as it had vacated the award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

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."