Divorce Law Journal

Walsh-Stender v. Walsh, Ky COA, UCCJEA Jurisdiction

Walsh-Stender v. Walsh, __ S.W.3d __ (Ky. App. 2009)

   The parties divorced in Tennessee and the decree included a permanent parenting plan regarding the custody of the parties’ minor son.  The Tennessee court modified the parenting plan in 2004, and shortly thereafter father and son moved to Kentucky.  Even though the son lived in Kentucky, he still visited his mother in Tennessee.  In 2008, father filed a petition to modify custody in Kentucky.  Father sought sole custody with mother having limited visitation.  After a hearing, the Kentucky court granted father’s motion.  Mother, who represented herself, filed a CR 60.02 motion months later.  The Kentucky court denied the motion and mother appealed. 

The COA never reached the merits of mother’s CR 60.02 motion.  Instead, it vacated the trial court’s denial of her CR 60.02 motion, the custody modification order, and any and all collateral orders, including the award of costs and attorney fees to father, because the Kentucky court lacked subject matter jurisdiction under the UCCJEA.  “Under the UCCJEA, the state having original jurisdiction over a custody matter retains exclusive, continuing jurisdiction over all custody matters even when the child has acquired a new home state as long as the child and at least one parent maintains substantial connections with the state.”  Since the mother still lived in Tennessee and the son regularly visited her, the substantial connection requirement was met.  Further, there was nothing in the record that showed that Tennessee declined to exercise its jurisdiction.  The lack of jurisdiction by the Kentucky court cannot be waived.  Even though the mother did not raise the issue of jurisdiction on appeal, appellate courts are required to address jurisdictional issues sua sponte if needed.  

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

Last Published Family Law Opinion Of The Year/Decade Released Today

Walsh-Stender v. Walsh, still another reversal of a trial court for lack of jurisdiciton under the UCCJEA, and in this one the issue was not raised until many months after the judgment. Digest to follow.

Happy New Year to all!

No Ky COA Family Law Published Opinions Today

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Day v. Day, Ky COA, Division of Worker's Compensation Benefits as Marital Property Affirmed

Day v. Day

PUBLISHED:   AFFIRMING

HARRIS, SENIOR JUDGE, PRESIDING; LAMBERT AND VANMETER CONCUR

COUNTY: KENTON

Ex-Husband appealed from TC’s decree of dissolution, arguing that TC erred by determining that his entire workers’ compensation settlement was marital property.

FACTS:

Husband suffered a work-related back injury four months prior to parties’ separation.  He filed application for worker’s compensation (WC) benefits after the separation, and the WC settlement agreement was approved after Wife had petitioned for dissolution of marriage. Husband received a gross settlement of $30,000.00 for his injury, which included compensation for future and past income benefits, waiver of future medical benefits, waiver of his right to reopen, and a waiver of his right to vocational rehabilitation.  TC entered a decree thereafter, finding the entirety of the WC settlement marital and awarding half of it to Wife.  In amended findings and conclusions of law, TC found that Husband dissipated $11,300.00 of his WC settlement, and he appealed.

ANALYSIS:

Case law has established that WC benefits in either the form of a lump sum settlement or ongoing benefits are marital property. Husband argued that the WC settlement was not divided in just proportions.  CA noted that TC divided the WC settlement equally, that TC found that H had dissipated funds from his WC settlement, and that TC recited that it considered the KRS 403.190 factors. CA also noted that TC specifically stated that the marriage was not of a short duration, that Husband had not demonstrated that he was totally disabled, that he had the ability to obtain appropriate job skills but chose not to do so, and that the parties contributed equally to the marriage.  CA provided that they may have weighed the evidence differently, but TC did not abuse its discretion in dividing the WC settlement equally. 

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

No Published Family Law Cases From Kentucky Supreme Court Today

Discretionary review was denied in Hines v. Carpenter and the Court of Appeals Opinion was ordered not to be published. That case concerned a supersedeas bond and damages for delay. The digest has been updated to reflect it is not to be published.

Leach v. Harrison, Ky COA, Standing Of Non-Parents (Not Defacto Custodians)To Petiton For Custody

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

    More than eight investigations were opened regarding the mother’s abuse and neglect of her three minor children, including excessive corporal punishment.  Due to the ongoing investigations, all three of the children were eventually placed with the maternal grandparents on a temporary basis. The maternal grandparents filed for permanent sole custody of the children.  DRC recommended that father have custody of the children, the grandparents have visitation, and that mother be allowed to regain her visitation rights.  The trial court rejected the DRC’s recommendations and granted permanent sole custody to the grandparents and allowed the father unsupervised visitation.  Father appealed.  The mother of the children stipulated to neglect in the trial court and did not appeal. 

    COA never reached the merits of the case.  It vacated and remanded based on lack of jurisdiction.  Both parties stipulated before the hearing that the grandparents were not de facto custodians.  The right of a non-parent, other than a de facto custodian, to have standing to petition for custody used to be set forth in KRS 403.420, which was part of the Uniform Child Custody Jurisdiction Act (UCCJA).  The UCCJA was repealed in 2004 and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  No provision or statute currently in effect allows a third party, who is not a de facto custodian, to have standing to petition for custody.  Without jurisdiction, the Court had no power to do anything.  COA ordered the children to remain in the care of the grandparents pursuant to a previous order.  It also noted that if the children remained in the temporary custody of the grandparents for a continuous year following the conclusion of the proceedings, the grandparents would have standing as de facto custodians.  

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

Two Family Law Published Ky COA Opinions Today

Day v. Day, trial court was  affirmed in dividing all workers comp paid in lump sum equally, even though it was, in part, designated for future income benefits and a waiver of future medical benefits.

Leach v. Harrison, sole custody to maternal grandparents reversed. Since KRS403.420(4)(b) has been  repealed, there is no subject matter jurisdiction to determine custody rights of non-parent who has not been found to be a defacto custodian.

Digests to follow.

Biggs V. Biggs, Ky COA, Child Custody Modification Jurisdiction

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

 

 

 

The parties divorced in 1999.  The parties shared joint custody when mother and child moved to Colorado in 2007.  In 2008 father filed a motion to modify custody in Kentucky.  The trial court dismissed the motion for lack of jurisdiction, finding that Kentucky was no longer the child’s home state under the UCCJEA and that the child and a parent no longer had significant connections with Kentucky.  Father appealed.

 

    COA found that the trial court erred in declining to exercise jurisdiction.  Pursuant to KRS 403.824(1), Kentucky, the state that made the initial custody determination, retains jurisdiction unless: 

 

(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships[.]  

 

The child and his father still had significant connections to Kentucky.  The father was a Kentucky resident, the child had lengthy visits with his father, and the child’s younger half-sister, grandparents and other relatives also resided in Kentucky.  Therefore, Kentucky retained jurisdiction.  However, the trial court could have declined to exercise its jurisdiction pursuant to KRS 403.834.  In order to do so, the court should have applied the factors set out in KRS 403.834(2) and stayed the proceedings so that an action could be promptly commenced in the other state to ensure that the child did not slip through the cracks between jurisdictions.  The trial court did not do either.  The COA remanded the case for further proceedings consistent with the analysis and procedures required by the UCCJEA.

 

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

Cabinet for Health and Family Services v. J.T.G. and A.G., Ky COA, Jurisdiction, Venue, Cabinet Child Care Costs

 

Cabinet for Health and Family Services v. J.T.G and A.G. ___S.W. 3d ____(Ky. App 2009)

PUBLISHED:   VACATING AND REMANDING

LAMBERT, PRESIDING; HARRIS, SENIOR JUDGE, CONCURS WITH SEPARATE OPINION; VANMETER DISSENTS
COUNTY: SCOTT

 

Cabinet appealed Scott FC’s order finding it in contempt for failing to pay child care assistance costs, relying on Jefferson FC order as “law of the case.”

 

FACTS:

Uncle took permanent custody of Child due to mental illness of his sister, Child’s mother, by order of Jefferson FC.  Uncle claims that he advised Jefferson FC and Cabinet that he could only take permanent custody of Child if Cabinet paid childcare assistance and provided Kindship care until Child was out of grade school, and that Cabinet agreed, though written orders do not reflect such an agreement.    Case began in Jefferson County, where mother resided, but was later transferred to Scott FC at Uncle’s request as this was his county of residence.  Cabinet paid childcare for three years, and then advised Uncle that payments would cease.  Uncle claimed that Cabinet advised him to return to Jefferson FC for childcare order, and Uncle did so.  Jefferson FC issued order requiring Cabinet to provide childcare assistance, despite case having been transferred to Scott FC.  Uncle filed motion with Scott FC to have Jefferson FC order enforced.  Scott FC found that Jefferson FC order was the “law of the case,” and ordered Cabinet to pay.  Cabinet filed 59.05 motion, arguing that Jefferson FC order was unconstitutional as its terms violated KRS 610.010(12) regarding FC’s jurisdiction over Department of Juvenile Justice.  Scott FC disagreed, again holding that Jefferson FC order was “law of the case” and holding Cabinet in contempt.

 

ANALYSIS/HOLDINGS:

Jefferson FC lost jurisdiction over case once it was transferred it to Scott FC so that the Jefferson FC order at issue was void ab initio.  Scott FC mistakenly relied upon the Jefferson FC as the “law of the case,” because this doctrine applies only to appellate decisions in cases that are remanded to TC.  CA found that Scott FC did not make findings regarding KRS 610.010(12) and remanded to Scott FC for this purpose. 

 

VANMETER DISSENTING:

Both Scott and Jefferson FCs were capable of having, and did have, subject matter jurisdiction over the case.  While Scott FC clearly had venue of the case when Jefferson FC issued the order in question, Cabinet waived its objection as to venue.  Moreover, KRS 610.010(12) applies only to children who are committed to or in the custody of the Cabinet,” so this statute does not apply to this case. 

 

 

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

Ky COA Published Family Law Case December 4, 2009

Biggs v. Biggs , reversal of dismissal of custody modification motion; relocation/military deployment. Digest to follow.

Williams v. Bittel, Ky COA, Custody Modification and Stay of Foreign Judgment

Williams v. Bittel

PUBLISHED: AFFIRMING
HARRIS, SENIOR JUDGE, PRESIDING; ACREE AND CLAYTON CONCUR
COUNTY: DAVIESS

 

Child’s Aunt and Uncle (“the Williamses”) appealed from TC’s order denying their petition to modify custody of Child and cross-appealed from TC’s order denying their motion to reconsider the petition. Fiance of Child’s deceased mother (“Bittel”) appealed from TC’s order denying his petition to modify custody and to stay a foreign judgment.

 

These appeals presented CA with three issues of first impression:

(1) Whether an out-of-state adoption preempts KY custody orders;

(2) Whether a de facto custodian who is granted joint custody rights must continuously meet the de facto custodial requirements in order to maintain standing in custody proceedings; and

(3) Whether TC could properly condition its deference to the GA courts on Child’s custody and visitation by providing that its prior orders regarding Bittel’s joint custodianship and visitation with Child are not affected. 

 

FACTS:

Child’s biological father never had contact with her.  Mother began living with Bittel while pregnant with child, and after Child was born, they functioned as a family unit.  When Child was 18 mos., Mother died. 

The Williamses assumed the responsibilities of caring for Child, but Bittel remained extremely involved in her life and even moved in with the Williamses.  The Williamses later asked Bittel to leave their home.

When Child was 2, Bittel petitioned for custody of Child.  First, TC found that the Williamses and Bittel were de facto custodians of Child.  Then, both parties were granted joint custody. The Williamses were designated primary residential custodians with liberal visitation given to Bittel. Neither the Williamses nor Bittel appealed. 

When Child was 8, the Williamses notified Bittel that they intended to move to Georgia. Bittel ultimately moved for specific visitation.  The Williamses then filed a motion to modify custody.  The motion was denied based upon the Williamses’ failure to support their motion with an affidavit, as required by KRS 403.350.  TC granted Bittel’s motion for specific visitation and carefully outlined a visitation schedule. TC denied the Williamses motion to reconsider their petition for custody modification.  The Williamses appealed this ruling. 

During the pendency of the custody action in KY, the Williamses adopted Child in Georgia. Bittel attempted to intervene in the adoption, but GA law only allows blood relatives standing to intervene in adoption cases, and he failed.  The Williamses filed the GA adoption decree as a foreign judgment in KY. Bittel moved to stay the foreign judgment. TC upheld Bittel’s rights as joint custodian of Child, despite the adoption, but deferred to GA as the more convenient forum.  Bittel appealed and the Williamses cross-appealed this order.

 

I. Interstate Custody Dispute: Does the GA adoption divest KY of custody jurisdiction? No.

 

The Williamses argued that because KRS 403.802 specifically exempts adoptions from the UCCJEA’s concept of “exclusive, continuing jurisdiction,” jurisdiction of all custody proceedings in this action was relinquished to the GA courts because of the adoption.  CA noted that while the UCCJEA does not apply to adoptions, Bittel never claimed that KY should have jurisdiction over the adoption. CA held that exclusive, continuing jurisdiction of the custody matters remains in KY as long as Bittel resides in KY and maintains a significant relationship with Child, so that the GA adoption did not invalidate or alter TC’s custody orders.  CA noted that the Williamses “successfully circumvented the spirit of the law. Their actions create the precise problems that the UCCJEA and the PKPA attempted to avoid; viz., interstate custody disputes and competition. This loophole cannot be closed by our Court, only by legislative action.”

 

II. De Facto Custodianship: Must Bittel continuously meet the de facto custodian requirements in order to maintain standing in custody proceedings? No.

 

The Williamses argued that Bittel never met the standard for de facto custodians.  CA held that while Bittel’s de facto custodian status was the basis for the TC’s award of joint custody, his standing to participate in the custody proceedings was derived from his joint custodian status. He need not maintain the de facto custodian status in order to maintain standing as a joint custodian as such would place an unfair burden upon non-residential joint custodian.

 

III. The Inconvenient Forum Issue: Could TC properly condition its deference to GA courts on custody and visitation issues by providing that its prior orders regarding Bittel’s joint custodianship and visitation are not affected? “Yes.”

 

CA concluded that TC’s imposition of this condition was allowed by statute, but noted that GA courts may not fully enforce the “previous orders” of the TC. 

 

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

Ky Supreme Court and Court of Appeals Family Law Minutes Released Today

No Kentucky Supreme Court family law published opinions were among those released today. Discretionary review was granted in one family law case, Howard v. Howard. The unpublished opinion of the Court of Appeals is here. The case involves whether father, who quit job for claimed medical reasons, was underemployed for child support purposes and whether car debt is dischargeable in bankruptcy.  

The Court of Appeals issued one to be published family law case, Williams v. Bittel. Digest to follow.

Atkisson v. Atkisson, Ky COA, Marital and Nonmarital Property, Fees, Temporary Maintenance, Garnishment and Judgment Lien

Atkisson v. Atkisson and Atkisson v. Atkisson (consolidated appeals, separate opinions) ___S.W.3d____ (Ky App. 2009) and ___S.W.3d____(Ky App. 2009)

Husband appealed the trial court’s division of marital property, award of temporary maintenance, award of attorney fees, and denial of relief to quash garnishment writs and judgment lien.

Marital residence:     Court awarded husband the residence, but awarded all the equity in the residence to the wife as her non-marital property.  Husband argued that the court should have apportioned the equity as set out in Brandenburg.  COA found that while there was marital equity in the residence, even if the husband was credited for that amount, there was insufficient equity to fully reimburse the wife for her non-marital contribution.  Therefore, there was no marital equity to divide under Brandenburg.

Timeshare:    The court ordered that the timeshare be sold.  Wife was to receive $1,522.88 of the proceeds as her non-marital property.  The remaining proceeds were to be divided equally.  Husband argues that the court erred in not taking into consideration the debt associated with the timeshare, which the court assigned to husband.  COA found that debt is part of the current mortgage on the marital residence.  The court deducted the full amount of both mortgages from the value of the residence to determine the equity in the property.  As a result, the court properly considered the debt. 

Temporary maintenance:      Court ordered husband to pay wife temporary maintenance of $2500 per month.  The order included a provision for health insurance and car insurance.  Husband argued that the award was excessive and that wife intentionally remained unemployed.  COA found the trial court had imputed wife with income in calculating temporary maintenance and found no basis to disturb the trial court’s judgment. 

Attorney fees:    Trial court awarded wife $10,000 in attorney fees.  Husband argued that wife not entitled to any fees due to the amount of assets wife received in the judgment.  COA found no abuse of discretion.  Wife only awarded half of the fees she asked for, husband retains a higher earning capacity, and husband received the residence and most of the income producing property. 

Writs of garnishment and judgment lien:  After the trial court ruled on the parties CR 59.05 motions, wife filed non-wage garnishment against three of husband’s accounts and a judgment lien against his real property.  Husband moved to quash the writs and lien as premature, but trial court denied the motion.  COA found that the garnishment writs and judgment lien were not filed prematurely.  The court’s judgment stays in effect until modified, although enforcement is stayed under CR.62.01.  When compliance dates have passed by the time the court denies a CR 59.05 motion, the trial court should allow a reasonable amount of time for the obligor to comply with the original order.  Here, a reasonable amount of time was given. 

Wife’s garnishment of tax-deferred accounts resulted in 10% penalties for early withdrawal, plus taxes and fees.  COA found that the garnishment writs subjected husband to penalties that far outweighed his failure to comply with the court’s orders.  The penalties and taxes imposed on husband changed the overall allocation of marital assets.  COA remanded this issue to the trial court for a determination of the amount of penalties and taxes incurred and an allocation of this amount between the parties. 

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

Temple v. Temple, Child Custody, Ky COA

Temple v. Temple, ____S.W.3d____(Ky. App. 2009)

Karen is the adopted daughter of Cheryl and Phillip.  At the time of the adoption, Karen was classified as severely emotionally disturbed.  When the parties divorced, Karen remained with Cheryl.  In 2003, at seventeen years old, Karen had a child, N.T.  Karen and N.T. lived with Cheryl for the first twenty months of the child’s life and Karen relied heavily on Cheryl for the support and care of N.T.  Karen later moved into an apartment with N.T., but still relied heavily on Cheryl.  Karen was investigated for neglect on two occasions, but the allegations were not substantiated.  However, social workers testified that N.T. thrived better with Cheryl than with Karen.  In 2007 Karen gave Cheryl written permission to seek medical treatment for N.T. when necessary.  She also agreed that N.T. should live with Cheryl.  In November 2007 Phillip took N.T. for a visit and did not return him.  Cheryl petitioned the court to declare her a de facto custodian and grant her permanent custody, or in the alternative grant her joint custody.  Karen filed a written response, but did not seek custody for herself.  Instead, she argued that her father should have custody. 

    After a hearing, the DRC rendered findings and conclusions of law that were adopted by the trial court.  The court found that Cheryl was not a de facto custodian, since she failed to meet the one year time requirement.  However, the court found that Karen waived her superior right to custody and therefore granted Cheryl sole custody of N.T.  Phillip and Karen were granted shared visitation with N.T. one weekend a month.  Karen was ordered to pay Cheryl $60 per month child support.  Karen appealed. 

    COA affirmed, finding that Karen had waived her superior right to custody by failing to seek custody for herself.  Karen admitted that she did not want custody of her son.  She stated that if she were awarded custody she would give N.T. to her father.  Her testimony was equivalent to an express waiver.    

    Digested bySarah Jost Nielsen, Diana L. Skaggs + Associates