Divorce Law Journal

Failure To Plead Prenup Is Failure to Plead Affirmative Defense And Bars Court Consideration Of Agreement

A recent Missouri case holds that a party seeking to enforce a prenup must raise the issues in a pleading. Failure to do so prevents the court from enforcing the prenup. Homan v. Holman, which can be found here.

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances . . . . A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.[(FN3)]

"An affirmative defense is waived if the party raising it does not plead it." In re Estate of Kilbourn, 898 S.W.2d 583, 586 (Mo.App. 1995).

Based on the foregoing, we determine the trial court abused its discretion in permitting Husband to introduce the Agreement at trial because Husband failed to assert the Agreement as an affirmative defense in his pleadings. It has long been held that "[m]atters seeking avoidance of a valid contract are affirmative defenses and must be set out in the pleadings." Id. The terms of the Agreement clearly provide "'additional facts [other than the statutory considerations of section 452.300] that permit [Husband] to avoid the legal responsibility alleged'" by Wife, i.e., that there was marital property to be divided. Smith v. Thomas, 210 S.W.3d 241, 244 (Mo.App. 2006) (quoting Mobley v. Baker, 72 S.W.3d 251, 257-58 (Mo.App. 2002)). A party that fails to raise an affirmative defense in his pleadings, waives that issue at trial. In re Estate of Kilbourn, 898 S.W.2d at 586.

Taking depositions

This is a very long post, but I think even very experienced litigators will enjoy it. Most of it is below the fold so you can click "continue reading..." as you have time to take it in, or come back to it before you take your next deposition. Vicki Pynchon has been sharing tips for less experienced lawyers on Settle It Now Negotiation Blog. Of depositions she writes that they are a stimulating, character-building, multi-dimensional board game with real stakes. You never master it. That's the good of it. There's always a challenge. Her lessons from the school of hard knocks are insightful for all of us. While the series is not finished, there is just too much already available not to share. Her Funnel Technique is an easy road map for any depo.
Some quotes from Advice For Young Lawyers - On The Job Deposition Training:

You don't have to rephrase a question in response to an objection.

I did this dozens of times in a two-hour period. At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.

"Just wait for the answer," he whispered in my ear. "You don't need to re-phrase the question. If the witness doesn't answer, ask the court reporter to read it back. Say, "do you have the question in mind? Yes? Would you answer it please?'"

I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."

The court reporter doesn't really "strike" anything from the record.

This is someone else's painful story. I was defending a deposition that was obviously the examiner's first time. Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that."

Then he waited for her to do something. When she didn't, a confused look would cross his face and he'd return to his questioning. He must have done this a dozen times during the first hour.

Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"

After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."

There is no usual stipulation.

At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"

So that's what I did in my first deposition.

"The usual stipulations counsel?"

Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new

Discretionary Review Pending In Appeal From Confirmation Of Four Year Old DRC Report (KY)

Thomas v. Thomas, 2004 CA-001997-MR, designated not to be published, discretionary review granted.

Issue and Holding:
Whether the trial court erred in denying wife an evidentiary hearing and adopting the Domestic Relations Commissioner’s four year old recommended findings of fact and conclusions of law. The Court held no, either party could have requested that the DRC make written recommendations, and neither chose to do so.

Facts:
An interlocutory decree was entered in November 1999. A hearing was held on the remaining issues in April 2000. At the conclusion of the hearing the DRC made oral findings of fact on all issues. The wife’s attorney was to then put the DRC’s oral findings into written form. The DRC’s Recommended Findings of Fact and Conclusions of Law was not entered until June 2004. The wife then filed exceptions to the DRC’s recommendations, arguing that due to the DRC’s delay and subsequent changes in the parties’ circumstances that additional proof needed to be taken. The trial court heard the exceptions in August 2004, and then adopted the DRC’s recommendations in their entirety in September 2004. The wife appealed, arguing that the trial court should have allowed her to present evidence as to why enforcement of the DRC’s recommendations would be inequitable.

Analysis:
While the DRC failed to comply with KRS 454.350(2), both parties were aware of what the DRC’s recommendations were going to be. The DRC’s written recommendations were the same as his oral findings made four years earlier. Either party could have requested that the DRC make written recommendations, and neither chose to do so. Affirmed.

Huddleston, Senior Judge, Dissented.
The four year delay is unconscionable. The parties’ circumstances had obviously changed over that period of time. The trial court should have conducted a hearing to receive updated information rather than summarily adopting the DRC’s four year old report and recommendations.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Roberts v. Bucci

Roberts v. Bucci

Question: Does the family court have jurisdiction to consider a CR 60.02 motion involving a DVO?

Answer: Yes. By its plain language, CR 60.02 provides an avenue by which a party may seek to be relieved from a “final judgment, order, or proceeding.” Where the issuance of a DVO adjudicates all of the rights of both parties in the proceedings with nothing left for its consideration, the order is final. In fact, in cases where issuance of a DVO adjudicates all rights of the parties, the parties also have the right to appeal. Therefore, the relief afforded by CR 60.02 as to “final judgments, orders, or proceedings” is available as to DVOs if a movant sets forth any of the criteria covered by the rule.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.

E-Discovery

E-Discovery: A Special Publication of the ABA Section of Litigation is available for purchase ($19.95) here.

More On Changes Adopted And Not Adopted To Kentucky Rule Of Civil Procedure

In May, 2006 when we posted some of the proposed civil rules changes, we tracked the changes so you could see what was added and/or deleted from the proposed rule. The changes were not hightlighted when finalized and published in the Bench and Bar, so we thought it might be helpful to repost so you could see what's new. In doing so we noticed several proposed rules changes that were not adopted, so now is a good time to highlight that as well. There are several other rules changes that do not relate just to family law, such as the record on appeal, briefs, and filing fees. The Kentucky Law Blog posted a link to the online source, so go there to look at them.
These rule changes were adopted as proposed:
Proposed Civil Rule Change: Where to File Family Court Appeal
Proposed Change in Civil Rule for Citation of Unpublished Decisions

Not adopted:

Proposed Civil Rule Change: Personal Data Identifiers
Proposed Civil Rule Change: Accelerating Appeals of Paternity, Dependency, Abuse, Neglect, Domestic Violence and Juvenile Status Offense

Welch v. Velten

Welch v. Velten, 185 S.W.3d 163 (Ky. 2006)
Issue and Holding:
Whether a party’s motion to dismiss her opponent’s appeal pursuant to Kentucky Rules of Civil Procedure (CR) 76.34(6) suspends the running of time within which that party may file a notice of cross-appeal, pending a ruling on the motion to dismiss. The Court held yes, the filing of a motion to dismiss suspends the running of time in which that party may file a cross-appeal.

Facts:
The family court entered its final judgment in the divorce proceeding on August 1, 2002. Both parties filed timely motions to alter, amend of vacate the judgment under CR 59.05. The court then entered an opinion on December 3, 2002 addressing the arguments and modifying the original judgment. Velten then filed a motion pursuant to CR 59 to amend the December 3rd order. The court denied this motion on June 27, 2003, and Velten filed his notice of appeal on July 18, 2003.
On July 28, 2003 Welch filed a motion to dismiss the appeal as untimely filed in the Court of Appeals. The Court of Appeals denied the motion on September 10, 2003. Welch filed her notice of cross-appeal on September 19, 2003. The Court of Appeals dismissed the cross-appeal as untimely filed. The Supreme Court granted discretionary review.

Analysis:
The Court held that any ambiguity in CR 76.34(6) is best resolved in favor of having appeals and cross-appeals decided on their merits. Therefore, the timely filing of a motion to dismiss an appeal will suspend the running of time within which a party may file a notice of cross-appeal.

More On Citing Unpublished Opinions

The Indiana Law Blog posted an excellent updated article on the status of citing unpublished opinions at the federal and state levels. Kentucky non-published opinions have long been available on Westlaw and have been online at the Court of Justice website for some time, so we did not have to address the transparency issue. There was very little opposition by the bench or bar to the publication of previously unpublished opinions and less to the prospective publication of all decisions. However, our appellate judges, with the rule change, will have a heavier burden and more responsibility, sentiments expressed by Arizona judges and which caused them to reject publishing all opinions.

"Appellate Judge Donn Kessler (Arizona) said there is one big reason he and his colleagues decide not to publish a ruling. 'A good percentage of the briefs we get are either extremely poorly written, or an issue is not properly presented, or the record is not there,' he said. Kessler said it would be wrong to put out a published decision, which then automatically could be cited as precedent, in those kinds of cases.
Ruth McGregor, chief justice of the Arizona Supreme Court, also is cool to the idea. McGregor, who was an appellate judge before being named to the state's high court, conceded there's something else at issue. Judges who are faced with 120 to 150 rulings a year just don't take the same amount of time in their rulings when they know they won't be published. 'You only have so many hours each day and weekend and night,' she said. 'There's only a certain amount of time and care you can take in decisions,' McGregor said. 'When they're unpublished, it allows a little more freedom. So long as you get to the right result you don't have to be quite so careful about the language that you're using.' "

Consider a Kentucky family law issue arising from the 1996 legislative amendment to KRS 403.190. Last year an unpublished opinion was rendered as to what this change meant. The decision was unpublished. While it still won't be precedent, on January 1, 2007 it may be cited and considered. We ordered the briefs and the issue was not even argued by the lawyers. Oral arguments were not requested nor held. No motion for reconsideration was filed by either party and no motion for discretionary review filed. We then ordered the legislative history and the legislative intent is abundantly clear and is contrary to the unpublished opinion. So, now we have a statement of law from the Court of Appeals which may be cited and considered where the court had no help from the advocates. As a practitioner, it will be interesting to see how such issues are argued when an opposing party cites an unpublished opinion. Arguing the legislative history is simple, of course, but what will be good techniques to show a court that the appellate panel issuing the unpublished opinion did not have the benefit of the arguments that you are now making and that should be dispositive? How can you make briefs or the record of an oral argument held in a different case part of your record or authority? Add to this the issue of page limitations on appeals briefs and we're entering a doozy of a time for creative advocacy.

I suspect we will see more call by the court for oral argument, increased judicial time spent writing opinions, and increased need for staff attorneys. If our dockets continue exponential growth without corresponding financial resources, we may need to explore further some system of ruling on appeals that is not all published or nothing published.

Unpublished opinions may be cited in Kentucky.

It’s official: effective January 1, 2007, unpublished Appellate Opinions rendered after January 1, 2003 may be cited for consideration if there is no published opinion on point.
Section (4)(c) of CR 76.28 will read:
(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
As a member of the Kentucky Supreme Court's Civil Rules Committee, I suggested making the rule prospective so all we thought we knew about the law wouldn't have to be revisited, all our treatises wouldn't have to be updated with old unpublished cases, and we wouldn't have to do legal research on every issue even if we think we know the law just to see whether in the past there was some old unpublished case. I don't know why they settled on applying the law only to 2003 and later opinions, but I am glad it was limited to some extent and I am also pleased it applies only when there is not published authority on point.

More Kentucky Family Court Links

Yesterday we posted the new Rules of Practice of Jefferson Circuit Court, Family Division and its new website. Today LawReader posts links to:
Other Kentucky Court Family Law websites
Administrative Office of the Courts forms available online
A link to the local rules of practice of all Kentucky Courts with Family Divisions
Divorce Education programs throughout the state

AOC's Position on HB424 Explained

Scott Furkin, General Counsel, Administrative Office of the Courts, Kentucky, explains the confusion over the implementation of HB424 in a letter to be published next month in the Louisville Bar Briefs. You can read it Download hb424expain.pdf, now.
COMMENT: It does appear that the legislature yielded to the Kentucky Rules of Civil Procedure, so we must wait for the Rules to be amended before the clerks will accept pleadings under seal. Until then, we have to file all the private information in the public record.

Personal Data Identifiers; How Can AOC Trump The General Assembly?

HB 424 became law July 15, 2006, as we reported April 11, 2006. Yet, we have heard the Kentucky Administrative Office of the Courts is delaying enforcement pending the Kentucky Supreme Court's likely revision of the Kentucky Rules of Civil Procedure.

John Helmer's Comment on Personal Identifiers

Thanks to John H. Helmers, Jr. for his comment on this proposed change to the civil rules:
"It seems classic overkill to eliminate the use of the names of children from every pleading (Petitions for Dissolution of Marriage, Motions, Custody Evaluations, Affidavits) to prevent identity theft. Have there been verified instances where individuals have used names of children to steal identities? I tend to believe that the use of initials for children depersonalizes the proceedings and the fact that Family Court is dealing with the lives of real children."

Proposed Civil Rule Change: Where to File Family Court Appeal

Where to file an appeal has frustrated many taking an appeal from Family Court. It you know which courts are established pursuant to Ky. Const. section 110 (5) (b) and section 112 (6), this proposed rule change will clear everything up:

CR 73.01 (2): All appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken. Appeals from family courts that are established pursuant to Ky. Const. Section 110(5)(b) or Ky. Const. Section 112(6) shall be taken to the Court of Appeals. After such filing...

Last month we digested Thorn v. Commonwealth and Sirley Robinson.

So you have it right at hand, here are the sections of the Kentucky Constitution mentioned at the outset:
Section 110 (5) (b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

Section 112 (6) The Supreme Court may designate one or more divisions of Circuit Court within a judicial circuit as a family court division. A Circuit Court division so designated shall retain the general jurisdiction of the Circuit Court and shall have additional jurisdiction as may be provided by the General Assembly.

Comment: This is not how the rule came out of the Civil Rules Committee of the Supreme Court. Adding Section 110 (5)(b) adds nothing. Rather than refer to Section 112(6) it would be better to spell it out.

Proposed Civil Rule Change: Accelerating Appeals of Paternity, Dependency, Abuse, Neglect, Domestic Violence and Juvenile Status Offense

The Court of Appeals is already, by order, putting most of these matters on a fast track, as well as child custody cases. The proposed rule would provide:

CR 71.12(2)(a), (3)(b) and (4)(c) and (d) Briefs

Proposed Civil Rule Change: Personal Data Identifiers

The following proposed civil rule change is on the docket for the KBA June Seminar:

CR 10.01 Caption; names parties - personal data identifiers

Proposed Change in Civil Rule for Citation of Unpublished Decisions

The Kentucky Supreme Court has proposed an Amendment to the Kentucky Rules of Civil Procedure regarding the citation of unpublished decisions, as follows:

The proposed amendments to section (4)(c) of CR 76.28 are:

(c) Opinions that are not to be published shall not be cited or used as [authority] binding precedent in any other case in any court of this state, however such unpublished decisions rendered after January 1, 2003, may be cited for consideration by the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed documents and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

This rule change, among others, will be considered in an open session on Wednesday, June 14, 2006, at 9:30 a.m., in connection with the KBA Annual Meeting. The hearing will occur in ballroom (A-E) at the Northern Kentucky Convention Center in Covington.

It is important to emember that this is a proposed rule change. Only after discussion and reconsideration by the court will a new rule be finally adopted. In the interim, citiation to unpublished opinions continues to be improper.

Combs v. Daugherty and Jennifer Combs, Real Party in Interest,170 SW3d 424 (Ky.App., 2005)

Combs v. Daugherty and Jennifer Combs, Real Party in Interest,
170 SW3d 424 (Ky.App., 2005)
Discovery from child support obligor for purpose of recalculating
child support is not permitted until a motion for modification of
support is filed.

Discovery from child support obligor for purpose of recalculating child support subsequent divorce decree is not permitted until a motion for modification of support is filed. CR 76.36(4) Motion for Intermediate Relief seeking a stay of enforcement of an Order Compelling Discovery, which provided a warrant of arrest would issue if the discovery was not produced, was granted.

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

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

Gullion v. Gullion, 163 SW3d 888(Ky.,2005)

Gullion v. Gullion, 163 SW3d 888 (Ky., 2005)
Affidavits are not required for CR 59 motions. Upon remand
the trial court is directed to consider only evidence in existence
at the time of trial. A custody modification cannot be requested
until there is a final custody order to modify.

Parents had 50/50 pendente lite joint custody. The Circuit Court adopted the recommendation of the DRC giving father physical custody of the children. Mother filed a CR 59 motion to alter, amend or vacate and within the motion requested primary custody. Before it was ruled upon, husband obtained an emergency custody order which suspended mother's visitation. A year later the Court ruled on the motions, considering facts that had arisen since trial, and designated mother as the primary custodian. The Supreme Court held that affidavits were not required because a CR 59 motion is procedurally different than a KRS 403.340 modification. Affidavits are not required for CR 59 motions, just as they are not required for CR 60 motions. The trial court maintained continuing jurisdiction while the CR 59 motion was pending. A custody modification cannot be requested until there is a final custody order to modify.

The matter was remanded to the trial court because the CR 59 motion was granted, in part, on evidence not in existence at the time of trial. If facts arose since the trial that justified a change in custody, the law adequately provides a method to address such a situation.

Newly discovered evidence as a CR 59 grounds must be existing at the time of trial, otherwise litigation would never come to an end.