As promised, here’s the complete list and summary of the latest Kentucky cases that are final and now published. I have included just a few important non-final cases, but the status is indicated. Retired Chief Family Court Judge Richard A. Revell summarized half the cases in connection with our Fifteenth Annual Domestic Relations Update at the Louisville Bar Association yesterday. The seminar was well attended and the discussion lively. I will try soon to post the cases by category in a sidebar for easier access and frequent additions.
I. Child Custody and Visitation
Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.
Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he now resided. She remained in Tennessee.
On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff’s motion to stay due to her non-appearance.
On January 17, 1997, the Tennessee court dismissed Mrs. Goff’s action on the grounds there was an earlier pending action in Kentucky. The parties’ child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on
March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.
In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff’s visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally; and Kentucky does not have jurisdiction to determine such issue now, as the child has never resided in Kentucky.
The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and does not now have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.
The Court of Appeals overruled as to the first issue and affirmed as to the second issue. The Kentucky Supreme Court then granted Discretionary Review.
Held: Under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (was only 90 days old), and Tennessee declined jurisdiction.
The second issue is whether Kentucky has continuing jurisdiction to modify a custody decree, having acted originally. The Court holds Kentucky did not, as the child has never been in Kentucky. The Court of Appeals affirms on this issue.
Discretionary Review is sought and granted. The Supreme Court of Kentucky affirms the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky does not have jurisdiction to modify custody, as the child has never resided in Kentucky, and now more than 6 months have gone by, thus, Kentucky has lost jurisdiction.
As promised, here’s the complete list and summary of the latest Kentucky cases that are final and now published. I have included just a few important non-final cases, but the status is indicated. Retired Chief Family Court Judge Richard A. Revell summarized half the cases in connection with our Fifteenth Annual Domestic Relations Update at the Louisville Bar Association yesterday. The seminar was well attended and the discussion lively. I will try soon to post the cases by category in a sidebar for easier access and frequent additions.
I. Child Custody and Visitation
Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.
Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he now resided. She remained in Tennessee.
On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff’s motion to stay due to her non-appearance.
On January 17, 1997, the Tennessee court dismissed Mrs. Goff’s action on the grounds there was an earlier pending action in Kentucky. The parties’ child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on
March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.
In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff’s visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally; and Kentucky does not have jurisdiction to determine such issue now, as the child has never resided in Kentucky.
The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and does not now have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.
The Court of Appeals overruled as to the first issue and affirmed as to the second issue. The Kentucky Supreme Court then granted Discretionary Review.
Held: Under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (was only 90 days old), and Tennessee declined jurisdiction.
The second issue is whether Kentucky has continuing jurisdiction to modify a custody decree, having acted originally. The Court holds Kentucky did not, as the child has never been in Kentucky. The Court of Appeals affirms on this issue.
Discretionary Review is sought and granted. The Supreme Court of Kentucky affirms the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky does not have jurisdiction to modify custody, as the child has never resided in Kentucky, and now more than 6 months have gone by, thus, Kentucky has lost jurisdiction.
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 DRS 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 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.
Crossfield v. Crossfield, 155 SW3d 743 (Ky.App., 2005)
Change of residential parent within two years of custody decree
requires supporting affidavits and finding of endangerment or
placement with de facto custodian.
John and Keni had three children during their marriage, a boy and two girls. They separated in February 2002, and later filed a joint petition for dissolution, with an Agreement awarding joint custody and Keni designated primary residential custodian. This was later amended with John being designated the primary custodian. Less than nine months later, Keni filed a motion to modify the time-sharing schedule. No affidavits were attached to the motion. During the hearing, Keni acknowledged that she wanted the decree modified so that she would become the primary residential custodian.
The DRC conducted a hearing and recommended that “the best interest of the children would be served by returning the children to Mom’s care,” that the time-sharing arrangement be reversed, and that John pay child support to Keni.
John appealed to the Kentucky Court of Appeals. Keni argued her motion was merely one to modify visitation. Held – reversed – the modification altered the primary residential custodian, and is thereby subject to the statutes relating to modification under Fenwick v. Fenwick.
Note: this Court places emphasis upon the term “primary residential custodian.” While not defined by statute, it is generally used to refer to the party with whom the child or children will primarily reside. The other parent is awarded visitation. Returning the children to Keni’s care would result in Keni assuming the day to day decisions concerning the children, she would be responsible for their normal care and control, the parenting time would be reversed, as would the child support obligation. “Under these circumstances the modification would be of custody, not visitation.”
Allen v. Devine, 178 SW3d 517 (Ky.App., 2005)
Once a finding is made that persons are de facto custodians,
they then are on equal footing and court must then determine
best interest. Blood relationship is but one of many factors for
the trial court to consider.
Krystal is the mother of three minor children, Austin, Shayann, and Ayla. Burt is the father of Austin; Kevin is the father of Shayann; Jason is the father of Ayla. Ayla has resided since birth with Krystal’s mother, Darlene Kisselbaugh, and this child is not involved in this action. Krystal married and divorced Jason; she then lived with Burt from 1997 until 2000, when Burt disappeared; she then lived with Kevin during the pendency of this action. Danny Devine is Krystal’s father.
In 1996 Krystal was diagnosed with bipolar disorder, but she failed to take medication for this condition. She and Kevin have a history of alcohol and drug abuse.
Shortly after Austin’s birth in 2000, Krystal and Burt rented a home in Logan County, Kentucky from Ed and Judy Allen. In February 2002, Mr. and Mrs. Allen began keeping Austin and Shayann in their home on a regular basis, as Krystal and Burt could not financially provide for the children. Austin was then 20 months old, and Shayann was two months old. Krystal visited the children once or twice a month, and Kevin visited the children once every other week. Mr. and Mrs. Allen, who are not related to anyone involved in this action, provided essentially all of the children’s needs, with some small contributions from Krystal and Kevin and from Danny Devine.
In June 2002 Jackie Sanders, Kevin’s mother (paternal grandmother to Shayann), filed a petition for grandparent visitation. Krystal told Jackie the children were residing with Krystal’s cousin Judy (who undisputedly is of no blood relation to Krystal).
Between February and September 2002 the Devines visited the two children once or twice monthly, later moving to have a more consistent visitation schedule including overnight. They claimed they did not know the children were residing full-time with Mr. and Mrs. Allen as Krystal hid this from them.
In March 2003 Krystal met with her father and stepmother, Danny and Lisa Devine, and Krystal agreed the Devines should seek custody of the two children, and on May 1, 2003 they filed a petition for custody.
The trial court found that Mr. and Mrs. Allen were the de facto custodians of Austin and Shayann, but held that “as Mr. and Mrs. Allen are not related to the children, it would be in the children’s best interest for the Devines to have custody.”
Mr. and Mrs. Allen appealed to the Kentucky Court of Appeals, who upholds the finding that the Devines are the de facto custodians of the children, and reverses as to the award of custody to the Devines. The finding of de facto status puts the Allens on equal footing with anyone – parent, grandparent, etc. desiring custody and the trial court must consider more than just blood relationship. The trial court must give equal consideration as required by KRS 403.270(2) in determining “best interest.” Blood relationship is but one of many factors for the trial court to consider.
B.F. v. T.D.; 2005 WL 857093
Not final – discretionary review granted by Kentucky Supreme
Court in custody case between same sex parents, qualification
as de facto custodian and constitutional right to cross-examination.
This case involved same sex parents. Because Kentucky law does not permit joint adoption by same sex couples, T.D. alone adopted the child. T.D. became the sole “natural parent” but both mothers raised the child and contributed to the child’s financial, emotional and physical care. B.F provided the majority of the financial support while T.D. was more involved with the child’s daily activities. When the relationship dissolved, T.D. left the home taking the child with her and refused to allow B.F. to have contact. B.F. filed a petition seeking joint custody and visitation.
Judge Garvey granted B.F. temporary, supervised visitation and scheduled a hearing solely on the issue of whether B.F. qualified as a de facto custodian. The court limited the hearing to two hours and refused counsel’s request for cross-examination.
The Court of Appeals affirmed that two hours was sufficient to establish de facto custodianship because of the limited elements outlined in KRS 403.270.
Similarly, the Court of Appeals affirmed the judge’s refusal of her request for cross examination, holding that the constitutional rights for confrontation is only guaranteed in criminal cases, CR 43 does not mention the right to cross-examination and KRE 611 only states that a party “may” be cross-examined.
The Court of Appeals also affirmed the trial court finding that B.F. did not qualify as a de facto custodian because Consalvi v. Cawood held that to qualify as a de facto custodian an individual must be the primary caregiver.
Crouch v. Crouch, 2005 WL 2105931 (Not final – discretionary
review granted 12/14/05)
Change of custody case involving primary physical custodian being
called to active duty.
Marital Settlement Agreement provided for joint custody with mother having primary physical custody. When she was called to active duty, the parties entered an Agreed Order that their daughter would live primarily with father until “further order of court.” Mom did not end up serving overseas as anticipated but remained in Kentucky on active duty. Upon completion of active duty, the parties agreed between themselves that mother would attend a four month officers’ training camp. When the training camp was completed, mother asserted her right to return of the child. The Court of Appeals reversed the trial court’s order finding that it was in the best interest of the child to stay with father. The Court of Appeals held that the procedure for modification of a permanent custody order requiring a motion with supporting affidavits had not been followed and, therefore, the trial court did not have jurisdiction to proceed as it did. The Court also held that the trial court did not employ the correct standard as it did not consult KRS 403.340, but proceeded to decide custody anew under KRS 403.270 as if there had been no permanent custody order in place.
The date of the Divorce Decree incorporating the Marital Settlement Agreement was December 17, 1996 and the Agreed Order had been entered February 10, 2003.
ED v. Commonwealth of Kentucky and Cabinet for Health and
Family Services, 152 SW3d 261 (Ky.App., 2004)
District Court order permitting grandparent to visit during parents’
visitation time was insufficient to entitle grandmother to visitation
after parental rights of parents were terminated. Statute governing
grandparent visitation requires a visitation order issued by Circuit
Court prior to the termination of parental rights.
Statute granting grandparent visitation requires a visitation order issued by Circuit Court prior to the termination of parental rights of grandparents’ son or daughter to protect grandparent visitation rights with the children of that son or daughter. A District Court order establishing the number of hours of visitation that parents could have with their children in state custody and providing that grandparents may visit the children during this time was not sufficient to serve as a basis for maternal grandmother to have visitation with the children upon termination of the parents’ parental rights. This order did not give grandparents visitation independent of the parents nor specify visitation rights for the grandmother, and there was no indication that court was aware of the maternal grandmother or her fitness for visitation.
II. Child Support
S.R.D. v. T.L.B., 174 SW3d 502 (Ky. App., 2005)
Husband who held himself out to be child’s father for 9 years
was equitably estopped to deny paternity and child support
obligation when at the time of the divorce decree there was and
uncontested assertion that the marriage produced three
children.
Husband who held himself out to be child’s father for over nine years was equitably estopped to deny paternity and child support obligation after entry when at the time of the divorce there was an uncontested assertion that the marriage produced three children. Six years following the decree DNA testing confirmed a lack of paternity. The father wanted to continue in his role as a father in every way except for the financial support of the child.
The majority noted that that the Equitable Estoppel Doctrine has been applied in cases in which a custodial mother has sought continued support for her children from their stepfather. Its application serves the compelling need of the child to support when the child has been effectively foreclosed from obtaining support from a natural parent by the stepfather’s conduct.
Judge Henry’s dissent says this result places Kentucky at the extreme margin of the minority of states which have approved the doctrine of “paternity by estoppel.” It was noted that three times in the past CR 60 relief from child support obligation have been granted when putative fathers were able to show proof they were not biologically related.
No mention in the majority opinion or in the trial court is made of the natural father.
The dissent states “prudent family lawyers will advise husbands to obtain DNA tests as soon as their children are born and have nothing to do with the child if the results are unfavorable.”
Finally, the dissent suggests this may be a matter best left to the legislature than the courts, i.e., the Uniform Parentage Act.
Thompson v. Thompson, 172 SW3d 379 (Ky. 2005)
Child support accrues as each installment becomes due and such
fixed, liquidated debt is not subject to retroactive modification.
The dispute herein arises from the amount of child support Paul should have paid for the period of December 1999 through August 2000 for his two children in their mother’s custody. Two orders were issued by different courts, Carter District and Carter Circuit. Mrs. Thompson contends the District Court Order controls; Mr. Thompson relies upon the Circuit Court Order.
Paul filed for divorce on December 1, 1999 in the Carter Circuit Court. On December 10, 1999, Lisa obtained a DVO granting her temporary custody of the parties’ two minor children and a temporary child support order of $500 per week. On June 12, 2000, pursuant to Paul’s motion, the District Court set aside its Order and referred the issues to Circuit Court where the divorce was pending.
On August 14, 2000 Lisa moved the Circuit Court to set child support. The DRC heard the motion and recommended $568 per month on August 28, 2000. The parties agree that August 28, 2000 is the end of the time period in which child support is disputed. Thereafter, as a result of various motions and hearings, the DRC on May 15, 2002 recommended child support at $822.24 per month retroactive to December 1999. Lisa filed exceptions, which were overruled.
Lisa appealed to the Court of Appeals, which affirmed the trial court. She then requested and was granted Discretionary Review by the Kentucky Supreme Court, which reversed the Court of Appeals, citing KRS 403.213, which states that child support may be modified only as to installments accruing subsequent to the filing of a motion for modification. The payments due between December 1999 and June 12, 2000 (or August 28, 2000 – the opinion is not clear) vest as they become due and cannot be modified retroactively – apparently not even by agreement of the parties (Justice Johnstone dissents, joined by 2 others, pointing out Lisa signed an Agreed Order authorizing the Circuit Court to set child support retroactive to December, 1999).
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.
Reinle v. Com., 170 SW3d 417 (Ky. App., 2005)
Trial court erred in holding real estate sales proceeds for an
incarcerated child support obligor to be held by Master
Commissioner to be applied to future child support payments.
Equitable remedies are inapplicable when there is a plain,
adequate legal remedy, which exits under KRS 387.290(1) under
which a curator of the estate of a prisoner may be appointed to
provide for the support of the family and education of the children
of the convict.
In 1993 the Cabinet filed for child support against Larry on behalf of his ex-wife, Della. In July 1993 a judgment was entered settling child setting child support at $200 per month for the parties’ two children, and Larry made the payments until he was incarcerated in the penitentiary in 2000 for arson and assault.
By early 2003 child support arrearages had accrued to in excess of $10,000, and the Nelson County Attorney’s Office obtained a judgment and filed a lien against real estate owned in fee simple by Larry. The lien was enforced by foreclosure, and a net sum of $37,925.03 was realized by the sale, which proceeds were held by the Nelson County Master Commissioner.
Larry originally asserted a $5,000 homestead exemption but later withdrew this. Thereafter, Della filed a motion requesting that after the payment of arrearages, the Master Commissioner hold the remaining sale proceeds to be applied to future child support payments as they accrue. Larry objected, requesting that 50% of the net proceeds be paid to him pursuant to KRS 405.470(2). The trial court overruled his objection.
Larry appealed. The Court of appeals reversed. The Court disagreed with Larry that 50% of the proceeds were exempt under KRS 405.470(2), as the proceeds of the sale are not “disposable earnings,” but the Court agreed with Larry that the trial court in essence created a trust for the benefit of the children, and that equity remedies are inapplicable when there is a plain, adequate legal remedy, which exists under KRS 387.290(1) which provides the District Court of the county from which a convict is sent to the penitentiary may, upon application of anyone interested, appoint a curator of the estate of the prisoner (over age 21), and Sub. 2 provides the curator shall out of the effects held by him provide for the support of the family and the education of the minor children of the convict.
Rodney P. v. Stacy B., 169 SW3d 834 (Ky., 2005)
Increase in obligor’s income does not warrant increase in child
support where child is committed to the state. A parent cannot
be obligated to pay both the state for the support of a child and the
custodial parent. If the obligor becomes required to pay support to the
Department, the consequence would be conceptually the same as if the child
were in split custody. In that event, the trial court should calculate
child support to the custodial parent pursuant to KRS 403.212(6)-
Split Custody.
The Supreme Court held it was error to increase father’s child support for an adolescent who had been committed to the custody of the Department of Juvenile Justice as a public offender. Grounds for modification were that father’s income had increased. Mother did not testify as to any expenditures made on child’s behalf nor did she identify any expenses relating to the child that could not be avoided during the child’s extended absence from home. The father did not file a motion to reduce child support.
If a parent is able to contribute to the support of a child who is in the care of a state agency, the Court shall enter an order requiring the parent to pay a reasonable sum to the agency for the support of the child. KRS 610.170. A parent should not be required to pay support for the same child to both the legal custodian and to the Department of Juvenile Justice. If he were required to pay support to the Department, the consequence would be conceptually the same as if the child were in the payor’s custody. In that event the trial court should calculate the child support obligation to the legal custodian pursuant to KRS 403.212(6)-Split Custody.
Neither should one non-custodial parent be required to pay child support to another non-custodial parent absence some evidence that the other non-custodial parent is meeting some obligation to support the child.
Mattingly v. Mattingly, 164 SW3d 518 (Ky.App., 2005)
Obligation to pay college for a child over 18 was not dischargeable
in bankruptcy, even where mother failed to contest dischargeability
in Bankruptcy Court.
Father’s obligation under Settlement Agreement to pay children’s college expenses was not dischargeable in bankruptcy. KRS 405-020(1) did not preclude trial court from finding that father’s obligation to pay for children’s college expenses under Divorce Decree was in the nature of support, as parties are free to “agree otherwise” in writing. Nor does the mother’s failure to challenge the discharge of the debt in the bankruptcy proceedings preclude her from bringing a claim in Family Court. Both state courts and federal courts have jurisdiction to determine dischargeability of an obligation.
III. Internal Revenue/Divorce
Dobson v. Dobson, 159 SW3d 335 (Ky.App., 2004)
Spouse granted innocent spouse relief by the IRS is
not entitled to res judicata and trial court assignment
of tax deficiency 40% to innocent spouse was upheld.
Tax audit has uncovered a tax deficiency, but trial court
reasoned that the parties benefited from the lower tax burden
and innocent spouse was later required to pay the share of
taxes for which she would have been responsible had the
deductions not been disallowed.
Jerry was a shareholder in Cardinal Chemical Co. with his brother. The corporate tax returns were audited by the IRS from 1991 through 1999, and numerous claimed deductions were disallowed. The IRS granted Roberta innocent spouse relief under 26 U.S.C. 6015. The divorce court ordered Roberta to pay 40% of the tax deficiency attributable to the business, amounting to $190,748.82. Roberta was unaware of the audits, and it is undisputed that her name was forged on the P.O.A. allowing Jerry’s accountant to handle the audits. Roberta testified she had no knowledge of the disallowed deductions on the corporate return, nor any knowledge of the audit, and no involvement in the running of the corporation or the filing of the tax returns.
The trial court originally assigned the tax deficiency 50/50, but ultimately amended this to 60/40 (40% to Roberta).
Roberta appealed to the Court of Appeals, which affirmed, holding the IRS determination of innocent spouse is not entitled to res judicata because in involves only an administrative process rather than an adjudication and the only repercussion flowing there from is which party the IRS pursues for payment, citing Ravetti v. U.S., 37 F3d 1393. The Court reasons that the lower tax burden as a result of the deductions benefited both she and Jerry by allowing them to “keep more money in their own pocket.” Roberta is simply required to pay taxes that she would have been responsible for had Jerry not taken the deductions which were later disallowed.
IV. Uniform Enforcement of Foreign Judgments Act
Cox v. Cox, 170 SW3d 389 (Ky., 2005)
Where Texas lacked minimum contact with the husband
and, therefore, lacked jurisdiction to impose a lien on
property in Kentucky, its judgment regarding the lien was
not entitled to full force and credit and was not a “foreign
judgment” under the UEFJA.
Wife sought to enforce a Texas Divorce Decree in Kentucky. The Supreme Court held that Texas lacked minimum contact with the husband, and even though he failed to raise the issue of personal jurisdiction before the Texas court that did constitute a waiver of his right to raise the lack of Texas jurisdiction in the Kentucky court. The Texas judgment was not a ‘foreign judgment” under Uniform Enforcement of Foreign Judgments Act (UEFJA). The parties married in Texas, but immediately established a marital domicile in Kentucky. Because Texas did not have jurisdiction to impose a lien on property located in Kentucky, its judgment regarding the lien was not a “foreign judgment” under the UEFJA and therefore not entitled to full force and credit.
V. Business Valuation
Gomez v. Gomez, 168 SW3d 51 (KY. App., 2005)
Hospital based medical practice valuation which included
no goodwill value was reluctantly affirmed because, while
capitalization of excess earnings method is an acceptable
approach, the trial court is not required to use this method
and trial court ruling as to valuation will not be disturbed
unless clearly contrary to the evidence submitted. The
Court of Appeals reversed the maintenance award ($5,000
per month for three years + $2,424 per month for first and
second mortgages where husband grossed $600,000) to
$18,000 per year. Assignment of $52,000 credit card debt to
wife was also reversed because at least $18,000 of the debt
was for two rugs, of which the husband received one and the
debt was in the husband’s name. The Court of Appeals also
reversed the attorney fee award of only 22% of wife’s attorney
fees as the trial court did not enumerate any of the factors set
out in Sexton v. Sexton.
Cheryl and Eduardo were married June 2, 1985. Cheryl worked as a registered nurse until the birth of their daughter in 1988. Thereafter, they relocated to Somerset, Kentucky, and Cheryl stayed home to raise the daughter. Eduardo became employed by Bluegrass Radiology Associates, and in 1995 became a partner. For three years preceding the divorce, Eduardo grossed between $600,000 and $800,000 per year as a one-third partner.
Cheryl and Eduardo resolved many of their issues at mediation, but could not agree upon the value of Eduardo’s practice, the amount and duration of maintenance, the allocation of a $52,000 credit card debt, and whether Eduardo should be responsible for Cheryl’s attorney fees and expert witness fees.
The trial court held (1) Eduardo’s share of Bluegrass Radiology was worth $106,284, based upon Eduardo’s expert witness who attributed no goodwill value to the practice, and based the value solely on book value; (2) Eduardo to pay Cheryl maintenance of $5,000 per month for three years, in addition to the first and second mortgages on the family home awarded to Cheryl, approximately $2,424 per month; (3) Cheryl to pay the credit card debt of $52,000, there being insufficient evidence to support Cheryl’s claim that the debt was a joint obligation; (4) Eduardo to pay $12,000 of Cheryl’s attorney fees and $1,000 of her expert witness fee, about 22%.
Cheryl appealed. Held: (1) Reluctantly affirmed as to value of the practice. The Court says Clark v. Clark, 782 SW2d 56 (Ky.App. 1990) is the seminal case in Kentucky on valuing a professional practice. That case concluded the use of the capitalization of excess earnings method for valuing a practice is an acceptable approach – but does not require the trial court to use this method. The trial court’s ruling as to valuation will not be disturbed unless clearly contrary to the evidence submitted. The Court notes that others entering or leaving the practice paid nothing for goodwill; the value was based upon a percentage of the accounts receivable. This is a hospital based practice with no patient list or patient contact. (2) Reversed as to the maintenance award, as the trial court took none of the factors enumerated in KRS 403.200(2)(a) to (f), eg., age, education, length of marriage, standard of living, etc. into consideration. (3) Reversed as to the $52,000 credit card debt. At least $18,000 of the debt was for two rugs, of which Eduardo received one, and the debt was in his name. (4) Reversed as to attorney fees. The trial court did not enumerate any of the factors set out in Sexton v. Sexton, 125 SW3d 258 (Ky., 2004).
VI. Kentucky Rules of Civil Procedure
Combs v. Daugherty and Combs, 170 SW3d 424 (Ky.App., 2005)
Discovery for financial information for purpose of recalculating
child support cannot be filed until a motion for child support
modification is made. (See Section II for case)
Motion to Alter, Amend or Vacate
Gullion v. Gullion, 163 SW3d 888 (Ky., 2005)
Supporting affidavits not required. It is error to consider facts
occurring subsequent to the trial in ruling upon a CR 59 motion.
(See Section I for case)
Expert Witness Fees
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.
Cabinet for Health and Family Services filed the dependency action. After child was removed and released to a new caregiver, mother moved for custody to be returned. The Cabinet failed to have a representative present at the hearing. The Court appointed its own expert witness to perform the custodial evaluation and ordered the Cabinet to pay for the expert. Upon a Motion to Alter and Amend, the Cabinet claimed it should not have to pay costs because it had evaluators under contract, it was not a party to the action, it had not been served with legal notice of a request for costs, and the Order violated constitutional separation of powers doctrine. The Court of Appeals held that the Cabinet was a party, but agreed that the fees were improperly assessed because a of the Court’s failure to follow KRE 706(a), which requires a court to enter an order to show cause 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 comment on the selection of the expert. Failure to observe this procedural safeguard was deemed an abuse of discretion and the case was reversed.
VII. Appeals
Clark v. Com., Cabinet for Health and Family Services,
170 SW3d 426 (Ky.App., 2005)
Premature notice of appeal from an intermediate order may
proceed even though a second notice of appeal was not filed
from the final order.
At a hearing on February 3, 2005 the trial court determined that acts of domestic violence had occurred in the presence of the parties’ children, placing them at risk under KRS 600.020, and set a number of conditions pending disposition to be made at a later date.
Clark assumed this to be a final order and appealed. The Cabinet moved the Court of Appeals to dismiss on the basis the order from which Clark appeals is not a final and appealable order, as a notice of appeal was not filed from the dispositional order entered March 9, 2005, and the earlier appeal was premature.
Held – motion to dismiss overruled. Citing Johnson v. Smith, 498 US 276, the Court of Appeals applies the “relation forward” concept, which allows what is a premature notice of appeal from an intermediate order to proceed even though a second notice of appeal was not filed from the final order entered against him to be a final judgment. This rule permits a premature notice of appeal to be effective to invoke the jurisdiction of the appellate court upon final judgment where the circumstances suggest filing a notice of appeal would not be unreasonable.
Thorn v. Commonwealth of Kentucky and Shirley Robinson,
181 SW3d 560 (Ky.App., 2005)
Appeals from Family Court are to be taken to Court of Appeals.
Appeals from Family Court are to be taken to Court of Appeals. KRS 620.155 is
intended for use in counties that do not have a family court.
In this case, the underlying action was pending in a Family Court from the custody of the maternal great-grandmother based on a finding of neglect and placed into the custody of his paternal grandmother. The paternal grandmother appealed to Circuit Court, which reversed the Family Court, but then vacated its judgment for lack of subject matter jurisdiction.
The Court of Appeals held that the Circuit Court properly declined subject matter jurisdiction.
When two statutes are in seeming conflict, courts are to construe the statutes so as to give meaning to both.
VIII. Jurisdiction
Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the USSJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child. (See Section I for case)
Cox v. Cox, 170 SW3d 389 (Ky., 2005)
Where state lacks personal jurisdiction, its judgment or
lien is not a “foreign judgment” under the UEFJA and
not entitled to full faith and credit even if the lack of jurisdiction
was not raised in the foreign court. (See Section IV for case)
B.C. v. B.T. and K.F., Joint Custodians of N.C.,
182 SW3d 213, (Ky.App., 2005)
Appeal to Court of Appeals proper since Circuit had a
Family Court. Evidence was sufficient to establish father as
unfit, although such finding was unnecessary as grandmother
was found to be a de facto custodian and, thus, had equal
footing with father and the Court need only consider the
best interest of the child in making permanent custody award.
BC is the biological father of NC. On July 18, 2003 a dependency petition was filed in the McCracken Family Court on behalf of NC by a social worker. An E.C.D. was granted, a temporary removal hearing was held, and an order entered placing NC in the temporary custody of the child’s paternal grandmother. An adjudication hearing allowed temporary custody to remain with the grandmother.
On December 18, 2003 BT (paternal grandmother) filed a motion for permanent custody of NC. Neither the mother nor the father filed a response. McCracken Family Court granted the motion, from which the father appealed to the Kentucky Court of Appeals.
Held: affirmed. First, the Court notes that a Family Court is a division of Circuit Court, and even though it may be considering what may be within the jurisdiction of District Court if that county has no Family Court, it is a Circuit Court matter if the county has a Family Court, hence an appeal from Family Court must be to the Kentucky Court of Appeals.
Evidence sufficient to establish father was unfit, although unnecessary, as grandmother was found to be a de facto custodian, thus placing grandmother on equal footing with father, and court need consider only best interest of the child in making the award.
Hollbrook v. Hollbrook, 151 SW3d 825 (Ky.App., 2005)
Where wife did not file a complaint in Bankruptcy Court,
the Court did not have jurisdiction to reverse the order of
the Bankruptcy Court discharging husband’s debt to wife
arising from pension benefits he received prior to entry
and acceptance of QDROs.
1991 divorce decree incorporated an agreement equally dividing the marital portion of husband’s two pension funds. Because the husband had not retired, the parties agreed to postpone undertaking the calculations in order to determine their respective interest in the two funds. They agreed to communicate annually to determine the wife’s interest, but they did not end up communicating after the divorce. The husband retired in 1992, failed to notify his former wife, and a QDRO was not entered. When wife learned in 1999 that former husband had retired, she filed for reimbursement of her share of the retirement benefits that had been disbursed to her former husband.
The trial court entered QDROs to enable her to receive her portion of the ongoing benefits, but they did not commence until 2001. The husband filed a petition in bankruptcy which resulted in an automatic stay of the former wife’s efforts to enforce the decree and to collect the sums wrongfully withheld. She and her attorney were named as creditors and filed no claims to challenge the efforts to discharge the debt to the former wife. The discharge was granted September 9, 1999.
In 2001, the wife renewed her motion for contempt and reimbursement of her share of the pensions that had been paid between 1992 and 1999. The trial court affirmed the report of the DRC granting a common law judgment for the pension arrearage in excess of $60,000.
Although state courts have concurrent jurisdiction to determine whether a debt is in the nature of support or maintenance, the Bankruptcy Court has exclusive jurisdiction to determine whether a non-support obligation is dischargeable. Wife acknowledges that the debt at issue is not in the nature of support or maintenance.
The bankruptcy code further provides that a non-support marital debt shall be discharged unless the creditor files a complaint, which wife did not do. Since she failed to do so, neither the trial court nor the Court of Appeals has jurisdiction to reverse the order of the Bankruptcy Court discharging this debt. Repugnant as were both the deceptive behavior and the legal result of the bankruptcy proceeding, the Court has to give full faith and credit to the order of discharge and erred in failing to give effect to the discharge.
Finally, to the extent the husband received some pension benefits following the filing of his bankruptcy petition and before one or both of the QDROs were accepted by the pension funds, the case was remanded to the trial court to determine the amount of any benefits paid post-petition but before the effective date of the QDRO.
Jeffrey v. Jeffrey, 153 SW3d 849 (Ky.App., 2005)
KRS 454.220, enacted in 1992, supersedes prior case law
and permits a divorce court in Kentucky to assert long arm
jurisdiction to distribute marital property, wherever located,
and to set spousal support where Kentucky was the matrimonial
domicile and the action was filed within one year of the date the
respondent became a non-resident of Kentucky.
Marriage occurred in West Virginia in 1956. The spouses resided in Kentucky throughout the marriage, although for the last several years, the husband worked in Virginia, returning to Kentucky on weekends and during vacation. Husband moved permanently to West Virginia after the September 26, 2001 separation. On October 10, 2001, wife filed a petition for dissolution in Kentucky and an affidavit for the appointment of a warning order attorney. On November 6, 2001, husband petitioned for divorce in West Virginia. The Kentucky warning order report indicated husband received notice of the Kentucky divorce petition on October 18, 2001 before the date of filing in West Virginia. The West Virginia action was stayed pending the outcome of the Kentucky case. A default judgment was entered and husband’s subsequent CR 60 motion to set it aside was denied.
An appeal from a default judgment is limited to determining whether the pleadings were sufficient to uphold the judgment or whether the appellant was actually in default. The exception is subject matter jurisdiction.
Only one party to a divorce is required to be a resident of Kentucky for the court to exercise jurisdiction to grant a dissolution.
Gaines v. Gaines which held that the court does not have jurisdiction to award maintenance or distribute property located outside of Kentucky was superseded in 1992 by KRS 454.220, the marital long arm statute. A divorce court in Kentucky may assert long arm jurisdiction to distribute marital property or to determine maintenance, may exercise personal jurisdiction over a non-resident if Kentucky was the matrimonial domicile before the separation, and filed within one year of the date the respondent became a non-resident.
Finally, husband argued that, although the warning order may have sufficed to create jurisdiction to grant the divorce, it was insufficient to permit the distribution of marital property. However, wife had filed an amended petition which was served through the Kentucky Secretary of State in accordance with KRS 454.210(3), thus, exercise of personal jurisdiction was appropriate.
Fowler v. Sowers, 151 SW3d 357 (Ky.App., 2004)
Although Fenwick was decided after the 2001 changes
to KRS 403.340, the Court acknowledged its decision was
based on the older version because that version was in effect
at the time of the entry of the order under review. A contemplated
move to Alaska three years after a divorce is a change in
circumstances contemplated by KRS 403.340.A trial court should
conduct a full evidentiary hearing on the motion weighing all the
factors now encompassed by KRS 403.340.
Parties shared joint custody with wife awarded the primary physical care by agreement incorporated within 2000 divorce decree. In 2003, father filed motion to modify custody because mother had moved six times, given birth to another child out of wedlock, and after subsequent marriage to the father of the new baby, relocated to North Carolina. Child lived with father for two months while mother was in North Carolina. After mother and child moved back to Kentucky, father learned that mother was next planning to move to Alaska. It was at that point, he moved for a change of custody. Mother’s motion to dismiss relying on Fenwick v. Fenwick was granted, finding only that father’s pleadings were insufficient to establish adequate cause for a hearing.
The Court of Appeals reversed even though KRS 403.340 was significantly modified in 2001 after Fenwick. The previous standard required a showing that substantial harm would result to the child and that any harm caused by the change would be outweighed by the advantages. The statute now permits modification if a change occurred in the circumstances of the child or his custodian and if the modification is necessary to serve the best interests of the child.
Although Fenwick was decided after the 2001 change to KRS 403.340, the Court acknowledged that its decision was based on the pre-2001 version of KRS 403.340 because that was the version in effect at the time of the entry of the orders under review. Thus, Fenwick carried limited precedential weight.
The Court of Appeals held that no doubt a move to Alaska is a change of circumstance contemplated by the statute, and the removal of the child from one of his parents and from his entire extended family could create the potential of causing a negative impact on his best interest. Thus, the trial court should have conducted a full evidentiary hearing on the motion, weighing all the factors now encompassed by KRS 403.340.
IX. Maintenance Modification
Rayborn v. Rayborn, __ SW3d __, (Ky., 2006)(final 3/16/06)
The actual distribution of remaining marital property and
sale thereof did not result in the sort of substantial change in
circumstances that could render a maintenance obligation
nconscionable. Even if the initial divorce decree was done
incorrectly and without adequate findings, the remedy is
a direct appeal from the decree. These sorts of defects cannot
serve as a basis for a later action to modify the maintenance
obligation.
In a 1991 divorce decree, the husband was ordered to pay permanent maintenance to his disabled wife. The wife received most of the personal marital property including a mobile home, and the husband was ordered to pay the marital debt except for the debt on the mobile home. The one half interest in a 44 acre farm where the mobile home was located, was not disposed of by the decree.
After the divorce the husband purchased the other half interest in the farm from a third party. In 2002 the farm was sold for $336,075. Since half the interest in the farm was part of the marital estate, the parties agreed to split the proceeds of sale with the wife’s share consisting of $47,000. Thereafter, the husband moved to terminate his maintenance obligation.
The Supreme Court held that the actual distribution of the remaining marital property did not result in the sort of substantial change in circumstances that could render a maintenance obligation unconscionable.
In addition to its claim of changed circumstances, the trial court discussed the fact that the initial divorce decree was done incorrectly and, as a result, the maintenance obligation was unconscionable when it was created. The Supreme Court noted that, while the original decree did not include the requisite findings of fact and did not dispose of the entire marital estate, those failures do not provide adequate justification for the trial court to revisit the original maintenance order. Those sorts of defects are properly raised only in the context of a direct appeal of the decree; they cannot serve as a basis for a later action to modify the maintenance obligation.
Wheeler v. Wheeler, 154 SW3 291 (Ky.App., 2005)
Where first maintenance modification motion was denied,
and no modification resulted, the trial court must look at change
of circumstances since the original agreement or decree. Res judicata
does not preclude the court from looking at facts and circumstances
occurring prior to the first motion for modification when no
modification was granted. In modifying an agreement
that is subject to further orders of court, the court must
examine the factors set out in Combs v. Combs to determine
whether cohabitation justifies a reduction in maintenance.
A 1979 divorce decree incorporated a settlement agreement providing husband would pay $2,000 per month in spousal maintenance until wife dies or remarries. The parties further agreed the obligation would be subject to further orders in the event that either party had a change in circumstances. Thirteen years later wife moved to increase her maintenance on the grounds that her annual income decreased and her former husband’s income increased. The trial court denied the motion. In an unpublished 1985 Opinion that decision was affirmed. The agreement did not provide a specific standard so the Court applied the unconscionability standard of KRS 403.250(1).
In 2002 the husband filed a motion to terminate his maintenance or, in the alternative, to reduce it. The grounds were that the wife was now receiving social security and that she was now cohabitating with a man she began dating after the divorce. The wife filed a cross-motion to increase maintenance.
The trial court offset the husband’s maintenance by the amount of social security benefits, finding that the social security was attributable to her marriage. The trial court also ruled the husband was entitled to an offset of $456 per month due to the financial benefit she received with various expenses as a result of her cohabitation. The trial court reduced the husband’s maintenance from $2,000 per month to $1,000 per month.
The Court of Appeals considered whether the court erred in considering changes that have occurred prior to 1992 based upon res judicata.
In this issue of first impression, the Court noted that there was substantial authority elsewhere that a determination should be limited to whether a substantial change of circumstances occurred since the last prior modification rather than the circumstances existing on the date of the original decree. However, because maintenance was not modified in 1992, the doctrine of res judicata does not preclude the trial court from considering all of the changes which may have occurred since the original support obligation was established. Therefore, the court erred by limiting its inquiry to the consideration of only those changes that have occurred since 1992.
Further, the trial court erred in offsetting maintenance by the wife’s receipt of social security benefits. Only part of her social security benefit was actually derived from her marriage. The Court of Appeals directed the trial court, upon remand, to consider in light of the changes that have occurred since 1979 whether the husband is entitled to a reduction.
Finally, with respect to the reduction in maintenance due to the financial resource of her cohabitation, the Court of Appeals directed the trial court, upon remand, to consider the elements outlined in Combs v. Combs to determine whether the cohabitation constitutes grounds for a modification of maintenance together with all of the changes that have occurred since 1979.
X. Marital Property
Gripshover v. Gripshover; 2005 WL 1993603 (Ky.App.)
discretionary review granted 3/15/06
The parties married in 1988. Two children were born during the marriage. Darlene worked as a housekeeper during all but two years of the marriage; George worked with his brother in a farming operation.
The primary contested issue concerns the property disposition of the parties’ interest (M & NM) in real property. At the time of the marriage George and his brother each owned an undivided one-half interest in the farming business, which included 200 acres of land. During the parties’ marriage the partnership real estate holdings increased to more than 600 acres. The parties stipulated this property was worth $3,125,500. In addition, the farming partnership owned equipment and livestock worth $1,128,170 and a promissory note in the principal amount of $1,0221,500.
A few months prior to the parties’ separation, the two brothers and their wives executed documents transferring nearly all of the assets into limited partnerships, making George and Charlie controlling partners. George and Charles then assigned the partnership’s rights in the real property to an irrevocable trust, each brother trustee of the other’s trust. George and Charlie have complete control over the real property. The trusts do not pay income to the beneficiaries.
The trial court ruled the land was no longer a marital asset subject to division; Darlene had not been fraudulently induced into signing the documents; there was no evidence of “self dealing” by George. The trial court also held that George had a NM interest in the promissory note; George to pay maintenance to Darlene of $600 per month for five years; and $199.32 weekly child support during the nine months the children were with Darlene, nothing during the summer months when the children resided with George.
Darlene appealed. Held: The evidence is undisputed that at the time the trust was created a divorce was not contemplated, hence Darlene did not waive her rights to the property. Rather, the parties intended to continue to enjoy the income generated by the property throughout their lives. The fact that legal title to the property was assigned to a family trust does not eliminate Darlene’s equitable share of the property. Darlene is entitled to her equitable share regardless of how the property is titled, categorized or characterized. Therefore, the trial court erred in failing to fashion a remedy to award Darlene the portion of this property to which she is entitled. There is no question George has a NM interest in some portion of the real estate. The trial court is not required to terminate the trust in order to make an equitable division of the property.. Reversed as to this issue.
Held and affirmed to all other issues.
Shown v. Shown, 2005 WL 2398021, (Ky.App.),
not yet final
Motion for Discretionary Review filed 10/31/05
Teresa and Robert were married April 5, 1986. On August 4, 2003 Robert filed a petition for dissolution of the marriage. Robert was employed as a teacher, having a KTRS account valued at $81,410; Teresa was employed as a dental hygienist, with a SEP-IRA valued at $1,895. The trial court ruled Robert’s entire teacher’s retirement was exempt from division.
Teresa appealed, arguing that Robert’s retirement should be exempt only to the amount of her IRA.
Held: affirmed. KRS 161.700 controls. A specific statute controls over a general statute. There is a conflict between KRS 161.700(2) and KRS 403.190(4). The former deals with the treatment of the retirement fund, making it exempt from division. The latter statute deals with the treatment of retirement funds in divorce proceedings when one spouse’s fund is exempt. This is the opposite situation from that in the Turner case.
Nonmarital Property; Standard for Review
Smith v. Smith, 2006 WL 140577 (Ky.App.)(not yet final,
motion for rehearing filed 2/9/06)
Standard of review: In determining marital or nonmarital, there should be a two-tiered standard of review. The factual pinnings underlining the determination of whether an item of property is marital or nonmarital should be reviewed by the clearly erroneous standard. Because classification is a question of law, it should be reviewed de novo.
Increase in value of wife’s nonmarital stock is not marital merely because husband worked for the company, because he did receive a salary for the work he performed, and he made no financial decisions or exerted any managerial discretion regarding the profitability of the company.
Life insurance proceeds were wife’s nonmarital property despite fact that premiums were paid by both husband and wife after receiving cash gifts in the amount of the premiums from wife’s parents, because intent of the donor is the primary factor in determining whether a transfer is a gift.
Trial court’s decision to treat forgiveness of a loan from wife’s father as her nonmarital property was clearly erroneous. Wife had burden of proof on the issue and her evidence was insufficient to prove the intent of the donor only to make the forgiveness a gift to her.
Wife’s payment of nonmarital funds on husband’s behalf to the IRS was appropriately deemed a gift between spouses by the trial court.
XI. DVO & EPO
Wright v. Wright and Fraley v. Fraley, 181 SW3d 49
(Ky.App., 2005)
A full evidentiary hearing must be afforded by the
Court before entering or denying a DVO.
The Court of Appeals reversed the entry of a DVO in Wright and the dismissal of an EPO in Fraley, holding that due process required each party be given a meaningful opportunity to be heard. It was error in the Wright case for the Court to ask no questions of either party and to impermissibly rely upon extrajudicial evidence. In the Fraley case, movant’s counsel was not given a full opportunity to develop evidence of the prior violent incident.
The Court of Appeals recognized the immense impact the DVO can have upon victims and the devastating impact it can have on an alleged perpetrator holding that a full evidentiary hearing must be afforded to the parties.
XII. Evidence
Commonwealth, Cabinet for Health and
Family Services v. Byer, 173 SW3d 247, (Ky.App. 2005)
Before a court can appoint its own expert in a dependency
case, it must follow KRE 706(a) which requires an order
to be entered for the parties to show cause whey expert
witnesses should not be appointed. (See Section VI for case)
XIII. Adoptions
C.M.C. and C.L.C. v. A.L.W.; P.L.S.; and B.R.C.S.,a Minor;
S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and M.P.W., a Minor;
S.A.S. and T.L.S. v. A.L.W.; P.L.S.; and A.L.W. II, a Minor,
180 SW3d 485 (Ky., App., 2005)
Adoption without the consent of living biological parent is
by its very nature a proceeding seeking the termination of a
parental right. When statutes conflict, the more specific statute
prevails. Held that a party denied right to adopt has a right of
appeal.
The trial court denied a petition to adopt four children without the consent of their biological mother, which places in issue the involuntary termination of the biological mother’s parental rights.
The adoptive party appealed. KRS 625.110 provides that “an order for the involuntary termination of parental rights shall be conclusive…, except that an appeal may be taken from a judgment…involuntarily terminating parental rights.”
KRS 199.560 provides “any party to an adoption proceeding shall have the same right to appeal to the Court of Appeals as in any other equity action.”
Held: Party denied right to adopt may appeal. An adoption without the consent of the living biological parent is, by its very nature, a proceeding seeking the termination of a parental right. When statutes conflict, the more specific statute prevails. This is an adoption proceeding, not a termination proceeding, even though the mother’s parental rights would be terminated if the adoption were granted.
Storm v. Mullins, 2005 WL 3334604 (Ky.App.), not yet final
Biological mother’s collateral attack on adoption was barred by one year statute of limitations even though she and biological father never signed consent to the adoption but only signed consent to grandparents’ custody of children and did not sign statement that she understood the consent would be final unless she withdrew consent within 20 days, all as required by statute. Mother did not allege there was any fraud, only mistake or that her consent was misconstrued. Senior Judge Potter dissented, opining that the underlying judgment was constitutionally infirm and void.
XIV. Statutory Construction
Thompson v. Thompson, 172 SW3d 379 (Ky., 2005)
(See Section II for case)
Where two conflicting statutory provisions cannot be
reconciled, the one containing express and positive
language relating to the particular subject should take
precedence over a provision dealing with a matter in
general terms.
Thorn v. Commonwealth and Robinson, 181 SW3d 560
(Ky.App., 2005)
Where two statutes are in seeming conflict, courts are to construe the
statutes so as to give meaning to both. (See Section VII for case)
XV. Paternity
SRD v. TLB, 174 SW3d 502 (Ky.App., 2005)
Husband who seeks to avoid child support 6 years after entry of
divorce decree because DNA testing proved he was not the biological
father was equitably estopped from seeking relief under CR 60.
(See Section II for case)
XVI. Juveniles
Commonwealth v. C.J., a Child; 156 SW3d 296 (Ky., 2005)
There is no right of appeal from a Juvenile Court ruling that
a case is to be resolved by informal adjustment.
District Court ruled that a charge against a juvenile with unlawful possession of a weapon on school property should be resolved by informal adjustment. The Supreme Court affirmed, holding that an appeal from an informal adjustment in Juvenile Court was not permitted. An informal adjustment is neither adjudication nor disposition and is not a final or appealable order. It is simply a conditional agreement to hold the matter in abeyance while conditions are pending. If the juvenile satisfies the conditions, agreed to by the parties and approved by the court, then no further action is taken on the petition. If the Commonwealth desires a review, an original proceeding in Circuit Court in the nature of a writ of mandamus or prohibition.
A.W., a Child v. Commonwealth, 163 SW3d 4 (Ky., 2005)
KRS 635.060 does not act as a limitation on the length of
sentence a Juvenile Court may impose in the appropriate
exercise of its inherent contempt powers for violation of
its orders. A juvenile can be held in contempt for violating
the conditions of probation.
A.W., a 14 year old juvenile, was adjudicated a public offender, and given a 30 day detention sentence, probated on condition she (1) abide by a nightly curfew, and (2) receive no new charges.
Less than two months later, A.W. was charged with harassment and later with failing to abide by her curfew.
At the scheduled hearing, the court stated it would be a contempt hearing. Counsel for A.W. stated he had reviewed the matter and A.W. “substantially admits the contempt.” The record does not reflect the trial court explained to A.W. the consequences of an admission by her to contempt. A.W. was then held in contempt and sentenced to 60 days detention, all but 15 of which were probated for two years. A.W. appealed to Circuit Court, arguing the Juvenile Court erred in holding her in contempt as opposed to revoking her probations.
The Circuit Court affirmed. Thereafter, the Court of Appeals affirmed the holding of contempt but reversed on a finding that the procedures which the trial court followed did not comply with A.W.’s substantive due process rights, for failure to explain the consequences of admitting to contempt.
The Kentucky Supreme Court affirmed the Court of Appeals. The contempt power may be used to persuade a contemnor to do what the law requires. A contempt sanction is distinguishable from a sentence set at a dispositional hearing for a public offense.
T.D., a Child v. Commonwealth and D.B., a Child v.
Commonwealth of Kentucky; 165 SW3d 480, (Ky.App., 2005)
Complaints charging juveniles as habitual truants should have
been dismissed for lack of jurisdiction. KRS 159.140 requires
the director of pupil personnel to perform a home assessment.
KRS 630.060(2) provides that no complaint shall be received
unless an adequate assessment of the child has been performed
pursuant to KRS 159.140.
Actually two cases consolidated. TD and DB were both charged as habitual truants. The cases were tried separately. TD was charged with missing 13 days of school, and DB with missing 7 days of school.
Mr. Paul Montgomery testified he could not remember whether he had visited TD’s home; he had no documentation of home visits; and TD’s parents stated he had never visited the home. In DB’s case, Mr. Montgomery stated he had not documented home visits, but that he had been to the home many times and the mother had never been there.
Both children were adjudged truant and placed on probation. On appeal TD and DB’s main contention is that the court designated worker should not have received the complaints because the Director of Pupil Personnel had not fulfilled the statutory prerequisites. KRS 630.060(2) provides:
No complaint shall be received by the court designated worker alleging habitual truancy unless an adequate assessment of the child has been performed pursuant to KRS 159.140(1)(c)(d)&(f) unless it can be shown that the assessment could not be performed due to the child’s failure to participate.
KRS 159.140 requires the Director of Pupil Personnel to acquaint the school with home conditions of the student and visit the homes of students who are absent from school or who are reported to be in need of books, clothing or parent care.
These requirements were not met prior to submission of the complaint to the court designated worker. Thus, the complaint should have been dismissed for lack of jurisdiction due to no home assessment having been conducted.
XVII. Governmental Immunity
Stratton v. Commonwealth of Kentucky, 182 SW3d 516
(Ky., 2006)
Actions of Cabinet for Families and Children in investigating
allegations of child abuse are discretionary, therefore, Cabinet
has immunity from negligence claims.
Actions of Cabinet for Families and Children in investigating allegations of child abuse are discretionary, therefore Cabinet has immunity from negligence claims.
CPS had been notified of possible physical abuse in February, 1994. The child died from injuries inflicted by her mother’s boyfriend three months later, who was subsequently found guilty of murder and criminal abuse.
The Board of Claims offers a limited waiver of governmental immunity, but it extends only to negligence claims involving the performance of ministerial acts, or one in which the agency has no discretion. Discretionary acts cannot be a basis for recovery under the Board of Claims Acts.
