Divorce Law Journal

Defacto Custodian Published Opinion from Ky Court of Appeals Today

 

Hicks v. Halsey, digest to follow.

 

Where one of the children is emancipated, child support should be modified even though new amount is less than 15% increase or decrease. Dickens v. Dickens, Ky Court of Appeals

Dickens v. Dickens. Digest to follow.

Divisibility of Disability Pension Later Reclassified as Ordinary Retirement Pension, Attorney’s Fees, Bailey v. Bailey, Case Digest, Ky Court of Appeals

Buddy Lee Bailey v. Linda Beth Bailey, No. 2012-CA-000508-MR

Published: Affirming

County: Spencer

Facts

Husband filed for dissolution of the parties’ thirty year marriage in 2004. During his employment, Husband actively participated in his employer’s retirement pension plan. Subsequent to the parties’ separation, Husband was injured and filed for short term disability. The order entered by the Court after mediation included a provision that Husband was to provide to Wife information concerning the retirement account, including the policy, and all information regarding Husband’s disability. Wife was not provided with this information. The trial court entered a limited decree of dissolution in December 2004. In August 2006, the Court entered a judgment against Wife for the value of Husband’s personal property not returned to him. Husband filed a motion in June 2008 to satisfy the judgment. Since the pension issue had not been resolved, the Court also granted Wife’s request that the parties exchange all documents relating to retirement or disability accounts.

In June 2011, the Court entered an order holding that Husband’s retirement pension was not subject to division as marital property because Husband’s retirement pension was converted into a disability pension. Wife filed a motion to alter, amend or vacate the order because she was never provided with the retirement policy documents. Husband was deposed, and Wife received the documents. In January 2012, the Court granted Wife’s motion to alter, amend or vacate the judgment, holding that Wife was entitled to entry of a Qualified Domestic Relations Order allocating one half of the pension benefits accrued from the date of marriage to the date of the entry of the limited decree of dissolution. The court found that Husband’s disability pension would be converted to an ordinary retirement pension when Husband reached the age of 62. Wife was also ordered to satisfy the August 2006 judgment against her, plus statutory interest. Husband filed a motion to alter, amend or vacate the Court’s January 2012 order. The Court denied Husband’s motion after a hearing, and Husband appealed.

Analysis

When the Court ruled on the divisibility of the retirement plan, the relevant plan documents had not been made available to Wife or the Court. Because a full and candid disclosure of the parties’ assets is necessary for an equitable division of property, the Court did not abuse its discretion in granting Wife’s motion. Once obtained, the policy clearly stated that when Husband turned 62 his disability pension would end, and he would become eligible for a normal retirement pension. The Court of Appeals distinguished this case factually from the Kentucky Supreme Court’s decision in Holman v. Holman, 84 S.W.3d 903 (Ky. 2002), which held that disability benefits which replace future income should not be classified as marital property. Husband’s disability benefits would be reclassified on a date certain, which was different from the facts presented in Holman. The ordinary pension benefits that were accumulated during the marriage that would be reclassified as normal pension funds when Husband turned 62 were marital property. Any other conclusion would be inequitable because it could allow a spouse to prevent the other spouse from his or her share of retirement benefits through an election of disability coverage.   

On the attorney’s fees issue, Husband argued that the Court failed to rule on the motion. Wife argued that the Court’s silence on the matter was a denial of attorney’s fees. The Court of Appeals agreed with Wife, stating that attorney’s fees are entirely within the discretion of the trial court, and the Court in this case clearly considered the financial resources of both parties throughout the lengthy proceedings. Nothing in the record could demonstrate that the Court abused its discretion in failing to award attorney’s fees.

Affirmed.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

 

Ky Court of Appeals published family law opinion today:Divisibility of pension in disability pay status that will covert at age 62 to retirement pension and CR 59.

Bailey v. Bailey, digest to follow.

 

Digests of all published family law Kentucky appellate decisions are posted; there haven't been many this year.

Effect of Estate Planning Trust on Division of Property in Divorce Proceedings, Post-judgment Interest, Case Digest, Ensor v. Ensor, Ky Court of Appeals

Larry James Ensor v. Deborah Lynn Ensor, 2010-CA-001660-MR, 2010-CA-001699-MR and 2010-CA-002048-MR

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

County: Oldham

 FACTS:

Husband and Wife were married on June 14, 1980. Husband’s family owned an automotive parts remanufacturing business, which was very successful for many years. When business declined, Husband and his two brothers invested money from the family business into several real estate holdings, which produced significant rental income. Husband and the brothers, in an effort to minimize tax liabilities, utilized the assistance of attorneys and accountants and created a Grantor Retained Annuity Trust (GRAT). A GRAT, according to the Court of Appeals, is an estate planning tool wherein assets are transferred to a trust and ultimately to other beneficiaries so as to avoid estate taxes upon a donor’s death. Husband and his brothers also created a partnership, with all of the brothers and their wives executing general warranty deeds for all of the partnership’s property, which transferred any dower interest the wives had, or might have had, in the properties. Husband created his irrevocable GRAT and transferred his limited partnership interest while retaining a small general partnership interest. Husband received from the GRAT quarterly payments of $72,295 for nine years. The funds were used for the couple’s personal and joint expenditures. Husband’s children were beneficiaries of the GRAT as well, and received their portions of the GRAT; a gift tax return was filed with the IRS. Wife also retained an interest in the GRAT when the annuity payments terminated. Although divorce was not contemplated in the GRAT instrument, Wife would retain an interest in the GRAT if Husband died, until her death or remarriage.This arrangement avoided up to one million dollars in tax liability.

 Husband and Wife initiated divorce proceedings in 2004. A limited divorce decree was entered in January 2005, which reserved rulings on the division of marital assets. Wife argued that she did not fully understand the extent of the assets transferred to the GRAT and would have never agreed to release her share of assets valued at millions of dollars. Wife sought her interest in the property of the GRAT.

 The court held a five day trial of the property division in April and May of 2006. After additional filings and extensive motion practice followed, the court requested calculations consistent with its draft opinion of the issues. The court issued its opinion May 28, 2008, finding that the GRAT was valid and legally created and that Wife was entitled to a one-half interest in her marital portion of the GRAT. The court held additional hearings on the value of the GRAT property. On February 18, 2010, the court entered findings of fact and conclusions of law on the value of the GRAT and ordered Wife’s was entitled to a payment of $1,769,718.00, which was later reduced by the court to $1,410,106.00 plus post-judgment interest calculated at five percent. Husband appealed, alleging multiple errors; Wife filed a cross-appeal and a direct appeal on the issue of post-judgment interest. ANALYSIS:

 The Court of Appeals found that Wife was not defrauded when the GRAT and partnership interests were created. Husband did not defraud Wife into signing any documents or coerce her to release her interest in property, and the trust instrument did not contemplate divorce. Wife also failed to join the GRAT and its trustees, beneficiaries, or contingent beneficiaries, all of whom would have been necessary parties in an action seeking to avoid the trust.

 The Court further found that the funding of the irrevocable trust removed the transferred property from the marital estate. KRS 403.190(1) and other relevant case law define whether an asset is marital or non-marital for purposes of division.  The court must determine whether the asset is marital or non-marital, assign each party his or her non-marital property, assign each party’s interest in property with both marital and non-marital components based on the evidence and equitably divide all marital property. The formation of the GRAT in this case was for a valid estate planning purpose and is nearly identical to the estate planning scheme in Gripshover v. Gripshover, 246 S.W.3d 460 (Ky. 2008). Wife received an adequate benefit from the GRAT income because she and Husband enjoyed the quarterly annuity payments over the years, which exceeded $2,600,000. It was proper that the trial court accepted Wife’s expert in the accounting of the disbursements.

Because the GRAT was improperly included in the marital estate, the Court remanded for further determination concerning the proper valuation of the marital estate and division thereof without reference to the GRAT.  Because property division and equalization payments would be different without inclusion of the GRAT, the issue of maintenance was also remanded, but the Court of Appeals made no finding of whether a maintenance award would be appropriate in this case.

 Husband also argued that $60,000 was erroneously assigned to him in the valuation of marital assets because he used those funds for a marital purpose. Trial courts are given wide discretion in this area, and the court did not find Husband’s testimony that the funds were used for a marital purpose credible. The trial court found that those funds had been used for attorney’s fees, non-marital debts and other personal expenditures, which was not clear error.

 Wife challenged an award to Husband of accounts receivable for loans made during the marriage. Since Wife was awarded one-half of the accrued interest payable to Husband on a particular loan, any further award to Wife would result in a double recovery. Therefore, the court did not err in preventing a second division of this asset. 

 Wife also appealed the trial court’s decision to award her an unfinished vacation home in Gulf Shores, Alabama, valued at $2,050,000, and making Wife responsible for all taxes, claims and costs associated with the property. Wife insisted on retaining the home against the advice of trial counsel and the court. Wife argued that Husband should be responsible for his portion of the taxes and other costs associated with the property before he conveyed the property to her in 2010. The trial court allocated unpaid construction costs, insurance premiums and other costs to each spouse at the time of the divorce decree. Since the other costs were incurred after the divorce decree was entered and was incurred solely for Wife’s benefit, the debts were non-marital, and Wife is responsible for all of the costs associated with the property after that date.

 On the issue of post-judgment interest, the Court of Appeals upheld the trial court’s order award of five percent post-judgment interest.  The trial court concluded that five percent was the rate of return on investments during the litigation and imposing a higher rate would be inequitable. The Court of Appeals agreed, stating that the post-judgment interest rate is mandatory only to money awards containing deferred payments for portions allocated to the non-paying spouse. In this case the trial court weighed the equities, including that Wife’s award was to be paid in a lump sum and Husband was given a relatively short amount of time to make full payment.

Affirmed in part, reversed in part and remanded.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

Contempt Affirmed for Failure to Submit to Genetic Testing to Determine Paternity, J.K. v. N.J.A., el al, Ky Court of Appeals

J.K. v. N.J.A.; Honorable Linda Bramlage, Boone County Family Court Judge; and Honorable Bailey Taylor, 2012-CA-000897-ME

Published: Affirming

County: Boone

ISSUE: Whether a man, with whom Mother admits having an affair and living with for about fifteen months-until mere days before Child’s birth-is entitled to know whether Child is his biological son.

FACTS:

Mother gave birth to Child May 16, 2011. Mother claims that her Ex-Husband, with whom she plans to remarry, is the father and listed him as such on Child’s birth certificate. Despite an order from the Family Court compelling Mother to undergo genetic testing for herself and Child, neither was tested due to Mother’s maneuverings.  The Family Court entered an order following a hearing on a paternity complaint by Putative Father.

The Family Court found Mother in contempt of multiple  orders from the Family Court, which ordered her to submit herself and Child to genetic testing by a later date or serve 180 days in jail. Mother refused to comply with the Family Court’s orders.

 ANALYSIS:

 Mother alleged that she and Child should not have been ordered to complete the genetic testing because no state action was involved; Putative Father did not qualify as such under KRS 406.21 and could not challenge paternity; Ex-Husband was presumed to be Child’s father because Child was born less than five months before the parties’ divorce; the Family Court’s order violated Mother and Child’s constitutional right to privacy; and the Family Court should not have ordered the maximum contempt penalty for Mother’s failure to comply with the court’s order.

 KRS Chapter 406 is the means by which courts determine fatherhood. While a child born during lawful wedlock may be presumed to be the husband’s child under KRS 406.11, that presumption is rebuttable, so that a legal finding of paternity is not denied to a putative father. KRS 406.091(2) mandates genetic testing upon a request of a party supported by an affidavit. Putative Father in this case made such a request, and it was the Family Court’s duty to order the genetic testing. Mother should have requested written findings of fact and conclusions of law from the Family Court regarding whether Putative Father qualifies as a putative father under the statute and whether he had standing to assert a claim of paternity. However, Putative Father presented sufficient evidence on the record that he had sufficient access to Mother to make him Child’s father. Mother and Putative Father lived together at the time of conception and engaged in sexual relations, and Putative Father was present when Mother took a pregnancy test, which was subsequently confirmed by a doctor. Mother told Putative Father repeatedly that he was Child’s father during the pregnancy, and Putative Father provided Mother with food, shelter, clothing and medical care during the pregnancy. Putative Father also opposed abortion and adoption options when they were presented by Mother. Thus, Putative Father had standing to challenge paternity and request genetic testing. Holding otherwise would deny Putative Father the right to prove his claim of paternity and deny Child the right to develop a relationship with his biological father. Furthermore, Mother offered no proof that would exclude Putative Father as a potential father of Child, especially since she told an Ohio family court in proceedings with Ex-Husband that she was not pregnant.

 Mother was ordered to complete genetic testing on herself and Child on four separate occasions and violated each order. The 180 day jail sentence for contempt was completely appropriate. Her attempts to halt Putative Father’s claims and the fact that she could have purged the contempt by complying with the Family Court’s order was sufficient to uphold the sentence. Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

           

Applicability of New Spouse’s Income and Expenses for Children of New Marriage in Modification of Maintenance Award to Former Spouse, Case Digest, Tudor v. Tudor, Ky Court of Appeals

Chauncey J. Tudor v. Melanie K. Tudor, No. 2012-CA-000110-MR

Published: Reversing and Remanding

County: Jessamine

FACTS:

Husband and Wife initiated divorce proceedings in 2009. After extensive hearings and a trial, Husband was ordered the custodial parent and ordered to pay $1,700 per month in maintenance for ten years. The divorce decree was entered in 2009.

In 2011, Husband filed a motion seeking disclosure of financial documents and motions for modification of child support and maintenance. The trial court’s findings of fact and conclusions of law only addressed Husband’s maintenance obligation. Relying primarily on the income of Husband’s new wife and citing expenses relating to their marriage and the children of their marriage, the court determined that the maintenance obligation should not be altered because the payment amount was not unconscionable. Husband appealed.

ANALYSIS:

The issue presented to the court was whether a new spouse’s income, and the couple’s ability to provide for children of the new marriage, should be considered when determining whether maintenance owed to the former spouse should be modified. KRS 403.250(1) states that maintenance obligations may be modified “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” When a party seeks to modify maintenance obligations, the court compares the parties’ current circumstances to the circumstances at the time the decree was entered. Modification of maintenance looks solely to whether the obligor’s circumstances have changed in a substantial and continuing way such that the order is rendered unconscionable. 

The trial court in this case determined that the Husband was earning $96,000 per year at the time the decree was entered, and Husband earned only $48,000 per year when he sought modification of the maintenance award. Rather than focusing on the income of Husband’s new wife and expenses relating to his new children, the trial court should have focused on whether the change in Husband’s income is substantial and continuing such that the award is unconscionable. If the trial court is determining whether the award should be reduced, the trial court may consider the extent to which Husband’s relevant expenses have been reduced as a result of his new marriage. Although not raised in this case, whether an obligor is voluntarily underemployed or whether retirement, if applicable, was reasonable could prevent the modification of a maintenance award.

Judge Maze wrote separately, concurring in the judgment. The trial court misapplied the facts to the law in this case because a spouse’s decision to remarry and start a new family does not relieve the spouse of the obligation to pay maintenance awarded to a former spouse. The new spouse has no obligation to contribute to the former spouse’s support. However, other facts in the case could support the trial court’s decision to deny the maintenance modification. The trial court should examine further on remand whether Husband’s income resulted from voluntary underemployment, general economic conditions, his own choices, or some combination thereof. Evidence that Husband in the past found well-paying employment in auto sales even during difficult economic and personal circumstances could indicate that Husband failed to show that the change in his circumstances is not likely to be substantial and continuing.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

Three published family law opinions from Ky Court of Appeals today

Tudor v. Tudor, modification of maintenance and income of new spouse.

J.K. v. N.J.A., et al,  paternity, standing.

Ensor v. Ensor, inclusion of Grantor Retained Annuity Trust in marital estate, post-judgment interest.

Digests to follow.

 

Termination of Parental Rights, Case Digest, KY Court of Appeals, C.A.W. and T.L.M. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; B.L.M., an Infant, and S.M.M., an Infant

C.A.W. and T.L.M. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; B.L.M., an Infant, and S.M.M., an Infant, NO. 2012-CA-000875-ME

Published: Affirming

County: Jefferson

FACTS:

On September 7, 2011, the Cabinet for Health and Family Services filed a petition for the involuntary termination of parental rights against Mother and Father. The Cabinet had filed two dependency petitions regarding the children, alleging that they were abused or neglected under KRS 600.020(1). The September 23, 2009, petition alleged that the children had been left unsupervised without adequate food and that the parents acknowledged that their substance abuse issues interfered with their ability to care for the children. In a second dependency petition filed in February 2010, the Cabinet alleged physical abuse against one of the children during a supervised parental visit, lack of supervision of the children, and the parents’ substance abuse issues. After a temporary removal hearing, the children were placed in the custody of the Cabinet.  

Throughout the dependency cases, the parents were ordered to participate in supervised visitation, remain clean and sober, comply with court orders, complete a psychological assessment, complete a substance abuse assessment, and complete parenting classes. These orders were incorporated into a case plan signed by the parents. The psychological assessments showed that Mother’s intellectual functioning was in the borderline range and that she could not care for young children without significant outside assistance. Mother also acknowledged anxiety, depression and a nerve disorder. Father’s psychological testing revealed cognitive function in the extremely low range and recommended parenting education courses.

Mother and Father did not fully comply with the recommendations in the assessments. Mother tested positive for alcohol, and Father tested positive for cocaine during random alcohol and drug screenings. Neither parent provided proof of completion of the ordered parenting classes or attendance at Alcoholics Anonymous meetings.

The Family Court found that the children would continue to be abused or neglected if returned to parental custody and that termination of parental rights was in their best interest. The parents’ mental and substance abuse issues made it clear that they would not be able to provide even minimally acceptable care to the children. The court also found that the children had been stable since their placement in foster care. The parents appealed.

ANALYSIS:

In order to terminate a parent’s rights, Kentucky courts must find by clear and convincing evidence that the child has been abused or neglected, that termination is in the child’s best interests and that at least one of the grounds listed in KRS 625.090(2) exists.  The trial court has a great deal of discretion in the involuntary termination of parental rights. The parents argued that the Family Court erred in terminating their rights because the Cabinet did not meet its burden.

Since the parents stipulated to the abuse and neglect of their children alleged in the two dependency petitions, there was ample evidence to support the Family Court’s finding that the children were abused and/or neglected. The termination was in the best interest of the children because the court considered how the parents’ mental and cognitive disabilities affected their parenting.  The Cabinet also made all reasonable efforts to reunite the children with their parents before filing the termination petition. The parents’ continued disregard for court orders and progress of their children while in the Cabinet’s custody demonstrates that the Cabinet could not have helped the family reunite. At the time of the termination hearing, the children had been in the Cabinet’s custody for twenty-four months. The parents had failed to provide essential food, shelter, clothing and medical care to the children during that time, thus the children had been abandoned for more than ninety days as required under Kentucky law. Furthermore, the children had formed a strong bond with the foster parents and no longer required counseling.

The Family Court found that a litany of grounds justified the termination of parental rights, and that finding was not clearly erroneous.

Affirmed.

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

UCCJEA Divests Family Court of Jurisdiction when Parents and Child have Left Kentucky, Ky Case Digest, Wahlke v. Pierce

Wahlke v. Pierce, No. 2012-000022-ME

Published: Reversing and Remanding

County: Campbell

FACTS:

Mother and Father were married in 2000 and filed for dissolution of the marriage in 2008. When the petition was filed, Mother, Father and Child born of the marriage lived in Campbell County, Kentucky. After the dissolution was filed, Mother, with Child, and Father moved separately to Ohio. Neither the child nor the parents lived in Kentucky when the divorce decree was entered in 2009. Mother was awarded sole custody of Child, and Father was awarded visitation and ordered to pay child support. The parties’ continued to litigate post-decree issues related to child support, visitation and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to relocate and notified the family court that she wanted to move with Child to Abilene, Texas. Mother also filed a motion to modify Father’s visitation schedule to reflect the distance between the parties. The Family Court entered an order granting the motion to relocate and amending the visitation schedule.

Father filed a motion to reconsider the court’s ruling based on a lack of jurisdiction, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court denied the motion, stating that there was substantial information available in Kentucky regarding the child’s care, protection, training and personal relationships, and Father waived the issue by not raising it until the motion to reconsider.

Father appealed, arguing that the Family Court lacked subject matter jurisdiction to modify the original child custody determination under the UCCJEA because there was no exclusive, continuing jurisdiction because neither the parents nor the child lived in Kentucky.

ANALYSIS:

The UCCJEA, codified in Kentucky law, governs disputes concerning the state’s jurisdiction to decide child custody and visitation matters. The Family Court’s jurisdiction to modify a custody arrangement is determined at the time the motion to modify is filed. The Family Court misinterpreted KRS 403.824(1) because the court no longer had exclusive, continuing jurisdiction over the custody matter. A family court’s jurisdiction is exclusive and continuing until one of two circumstances has occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child nor the parents of the child reside in that state. Therefore, unless a modification of custody has been filed, the state loses exclusive, continuing jurisdiction when the parents, persons acting as parents (if applicable), and child have all physically left the state to live elsewhere. Even if a significant connection existed and if certain evidence was available about the child in Kentucky, the relocation of both parents and the child outside of Kentucky before the filing of the modification divested the Family Court of exclusive, continuing jurisdiction.

Reversed and remanded. 

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

 

Role of Guardian ad Litem, modification of custody, Case digest, Ky Court of Appeals, Morgan v. Getter

Morgan v. Getter, 2012-CA-000655-ME

Published:Affirming

County: Campbell

Ex-Wife appealed Family Court’s order granting Ex-Husband’s motion requesting that minor child relocate to reside with him in Florida.

Facts:

Husband and Wife with two children from the marriage divorced in 2003. Ex-Wife had sole custody of the children, and Ex-Husband visited the children periodically with supervised visitation. When the oldest child reached the age of majority, she moved to Florida to attend college near Ex-Husband. Ex-Husband filed a motion for the younger daughter to reside with him in Florida. The Family Court appointed a guardian ad litem (GAL) to represent the child. The GAL filed a report with the court, and the court held a hearing, later ordering that the child could relocate to Florida and live with Ex-Husband. Ex-Wife appealed.

Ex-Wife argued that the court erred when it did not allow her to call the GAL as a witness and denied her request to strike the GAL’s report. Ex-Wife also argued that the court did not follow the law governing a change of custody and improperly determined that the relocation was in the child’s best interest. 

Analysis:

The Kentucky Family Rule[s] of Practice and Procedure provide that a GAL may be appointed by the court, but the rules specifically differentiates between GALs and other professionals who may be used in a custody proceeding. The GAL in this case was appointed to represent the child. The GAL was a licensed attorney, and would have violated the ethical rules governing confidential communications and acting as an advocate when the lawyer is likely to be a witness. Although Kentucky law does not specifically define the role of a GAL in custody proceedings, the Family Court properly denied the GAL’s testimony due to the ethical concerns presented.

The court also properly denied Ex-Wife’s motion to strike the GAL report. The court appointed the GAL to counsel the court in formulating a decision. The court has considerable discretion in this area, and it would have been a waste of resources to disregard the report. Because of the inherent conflict and potential for prejudice created by the ambiguity in the statute, the proper role for a GAL in child custody issues should be scrutinized by the General Assembly or Supreme Court. A review of the law in other jurisdictions regarding the role of GALs in custody proceedings did not yield consistent results. Some states prohibit a GAL from testifying, while other states have statutes explicitly stating the role of the GAL and the GAL report and under what circumstances a GAL can be called as a witness and cross-examined. Nevertheless, in this case, the testimony of the witnesses at the custody hearing was thorough and was relied upon more than the GAL report in the court’s decision. Any error from allowing the GAL report to be considered was harmless.

KRS 403.340(3) provides that a court must not change a prior custody determination, unless there is a change in the circumstances of the child or the custodian, and the modification is in the best interests of the child. The Family Court found that Ex-Husband had increased his visitation, that the older sister had moved away from the home to live with Ex-Husband, and the relationship between Ex-Wife and the child had deteriorated. The relocation was in the child’s best interest because Ex-Wife, Ex-Husband, the older sister, and the child all testified at the hearing, and each of Ex-Wife’s concerns about the relocation were addressed in the court’s order. Overall, the court accepted the child’s explanation of the toxic relationship that had developed between her and her mother.

Judge Denise Clayton wrote separately, concurring with the result. Judge Clayton stated that it was improper to admit the GAL’s report because the GAL was the child’s legal representative. The court reached the correct result, but the parties should have never been in the position where the child’s legal representative was also serving as an expert to the court.

Affirmed.

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

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

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

To Be Published:   Affirming  

County:  Laurel

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

FACTS:

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

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

ANALYSIS: 

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

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

FC Affirmed.

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

 

Role of Guardian ad Litem, modification of custody, Morgan v. Getter, Ky Court of appeals today

Morgan v. Getter. Digest to follow.

First Ky Supreme Court Minutes of 2013 released today; no published family law opinions issued

Civil Rules apply to domestic violence cases, Wolfe v. Wolfe, Ky Court of Appeals today

Wolfe v. Wolfe, digest to follow.

 

One Published Family Law Opinion from Ky Court of Appeals Today

Wahlke v. Pierce, UCCJEA. Digest to follow. 

CR 60.02 motion for relief from child support for non-biological child, case digest, Hughes v. Hughes, Ky Court of Appeals

Hughes v. Hughes, 2012-CA-000077-ME

Published:   Affirming  

County:  Jefferson

Ex-Husband appealed FC’s order denying his CR 60.02 to terminate child support for child not biologically related to him.

FACTS:

While Husband was serving in the Navy, Wife filed for divorce.  Paternity of the four minor children was not placed an issue in the petition.  Subsequent to the filing of the petition, but prior to entry of the decree, the parties submitted privately to paternity testing of the youngest child.  The Decree of Dissolution was entered prior to the parties’ receipt of the result of the paternity test.  The Decree ordered child support for all four children.  Subsequently, the parties received the results of paternity testing indicating that the youngest child was not the biological child of Ex-Husband.  Ex-Husband continued to pay full amount of child support.  Some years later all four children learned that Ex-Husband was not youngest child’s biological father. 

All of Ex-Husband’s biological children were emancipated by 2010.  Ex-Husband nonetheless continued to pay the full amount of child support for his unemancipated, not biologically related child.  Ex-Husband’s income had increased substantially at this time, while Ex-Wife was receiving state assistance due to her status as a full-time student with a part-time job.  Thus, in 2011, the Cabinet filed a motion to intervene and to modify child support on Ex-Wife’s behalf.  In response, Ex-Husband filed a CR 60.02 motion to terminate child support based on emancipation of his three biological children and the fourth child being not biologically related.  FC denied 60.02 motion, finding that it was not filed within a reasonable time, and Ex-Husband was therefore estopped from seeking relief from his child support obligation.  FC also increased child support from $863.64 to $1,009.00 per month for the nonbiologically related child. 

ANALYSIS:

“Reasonable time” requirement of CR 60.02 is within FC’s discretion.  Given that Ex-Husband had known since 2001 that he was not the biological father of the youngest child but continued to act as her legal father, FC did not abuse its discretion in denying his motion.  Further, it was not necessary for FC to consider whether doctrine of paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion.  CA held that FC correctly ascertained that the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for the payment of child support.  It is in youngest child’s best interest for her legal father, Ex-Husband, to contribute adequate child support and supportive parenting.

Affirmed.

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

One Published Family Law Opinion from Ky Court of Appeals February 1, 2013

C.A.W. v. Cabinet for Health and Family Services re termination of parental rights. Digest to follow.

Digest of Shafizadeh, multiple issues, Ky Court of Appeals

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

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

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

County:  Jefferson

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

FACTS:

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

ISSUES AND ANALYSIS:

Jurisdiction: 

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

Dissipation and Request for Findings of Fact:

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

Maintenance:

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

Child Support and Imputation of Income:

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

Attorney Fees:

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

Modification of Child Custody and Timesharing:

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

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

Garnishments:

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

CR 60.02:

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

Affirmed in Part, Reversed in Part, and Remanded.

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

No Ky right of action against attorneys who disclosed medical information during course of child custody hearing and CR11 sanctions inappropriate

Yeager v. Dickerson, el al, We will not be digesting this one from the Ky Court of Appeals today, but the opinion is linked in case you want to check it out.

Termination of Parental Rights, Case Digest, C.J.M. v. Com, Ky Court of Appeals

C.J.M. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000590-ME

and

C.F.A. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000591-ME

Published: Opinion Affirming

County: Garrard

C.J.M. (“the mother”) and C.F.A. (“the father”) appeal in separate cases from the order and judgment of Garrard Circuit Court terminating their parental rights.

C.K.A. (“the child”) was born on May 10, 2010 to the parties who lived together but were not married. On June 1, 2011, the Cabinet for Health and Family Services of the Commonwealth of Kentucky (the Cabinet) filed a petition for involuntary termination of the parental rights of both the mother and the father.  Shortly after the child’s birth, she tested positive for marijuana.  During a home visit at the parent’s residence on May 19, 2010, the worker and a colleague observed a large amount of beer cans and beer cases under the porch, and determined that the child did not have a crib or bassinet.

The mother admitted using marijuana during and prior to pregnancy and disclosed that she had two other children from a different relationship who were placed with their father in Ohio that she had not seen in a long time.  The father objected to taking a drug test, admitted marijuana use and stated he was not going to stop.  The Cabinet workers were concerned about their own safety because of the father’s erratic behavior.  The child, pursuant to an emergency custody order, entered foster care. The father’s aunt was given temporary custody, but when difficulties arose, the child was placed with a foster family with whom she still resided at the time of the trial.

At an adjudication hearing in August, 2010, the court found that the father neglected the child and the mother had stipulated to neglect.  The family court entered a disposition order and adopted the Cabinet’s case plan.  Both parents and the child were appointed counsel, but the parents fired their appointed counsel during the dependency proceedings.  Counsel was reappointed for the termination action.  Both parents also filed civil rights action in Garrard Family Court and United States District Court, all of which were dismissed.  During the dependency action, the Cabinet prepared several case plans requiring certain actions by the parents and payment of child support from each of them.

Subsequently, the father become increasingly hostile and resisted working the Cabinet’s case plan while the federal case was pending.  In September, 2010, the father requested waiver of further court appearances and waiver of reasonable efforts to reunite him with the child.  In October, 2010 the mother went to a domestic violence shelter and stayed about one month.  In February, 2011, the father was arrested and charged with terroristic threatening against a Cabinet worker and her supervisor.  He pled guilty and was ordered to have no contact with the worker or her supervisor.

On April 1, 2011, the family court held the annual permanency planning required by the statute and, after consideration of the parents’ progress, changed the goal for the child from reunification to adoption.  On June 1, 2011, the Cabinet filed a petition for involuntary termination of parental rights and the trial was conducted February 7, 2012.  At trial, the Cabinet testified that the child was doing well, had been in foster care approximately two years, and the foster family wanted to adopt her if given the opportunity.  The mother testified that the Cabinet failed to use reasonable efforts to reunite the child with her.  She described her various difficulties with transportation, finances, and communication, and discussed her failure to complete tasks related to her own case plan.  The father testified that termination of his parental rights was not warranted because the Cabinet did not use reasonable efforts to reunite him with the child.

On February 27, 2012, the Garrard Circuit Court entered Findings of Fact, Conclusions of Law, and an Order Terminating Parental Rights and Judgment.  The Order explained that both parents had abandoned the child for a period of at least 90 days, had failed to make adequate efforts in the child’s best interests so she could be returned to their custody, had failed to protect the child’s right to a safe, nurturing home, and finally it was in the child’s best interest to terminate the mother's and father’s parental rights.  Pursuant to KRS 600.020(1), the child was abused and neglected.  The family court thus determined that under KRS 625.090, it had been established by clear and convincing evidence that the parents were not providing a safe, nurturing home, and there was no reasonable expectation of significant improvement in the immediately foreseeable future.  Both parents appealed from these orders and are separately represented.

Both parents argue that the Cabinet failed to make reasonable efforts to reunite the child with them and that they were without effective assistance of counsel during critical phases of the juvenile case.  The Cabinet’s position is that clear and convincing evidence supported the termination and the parents waived representation during the dependency proceedings.

KRS 625.090 provides the statutory direction for a circuit court to involuntarily terminate parental rights.  There must exist at least one of the ten factors enumerated in the statute.  Further, the Cabinet must make reasonable efforts to reunite the child with the parents.  The Court of Appeals found sufficient evidence to remove the child from the home to ensure her safety.  The child tested positive for cocaine at birth and both parents admit they used marijuana before and during the pregnancy.  Neither parent had seen the child for more than one year, they were not working on the case plan, and both had child support arrearages.

With respect to the Cabinet’s obligation to make reasonable efforts toward reunification of the family, the Court of Appeals found that the mother was offered many services associated with her case plan, but did not avail herself of them.  Likewise, the father ignored efforts to work toward reunification and chose not to see the child.  On the issue of failure to provide effective assistance of counsel, the Court of Appeals noted that the parties dismissed their respective counsel during a portion of the dependency action. The Court of Appeals found that neither party had proven that their decision to be unrepresented occurred at a critical stage.

The Garrard Circuit Court’s order terminating the parental rights of the mother and the father is affirmed.

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

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

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

Published:   Striking Appellant’s Brief and Dismissing Appeal   

County:  Laurel

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

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

Affirmed.

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

CR 60 motion to terminate support of child not biologically related was denied as not timely and affirmed today on appeal

Hughes v. Hughes,

Digest to follow.

Rights of Third Parties to Enforce Judgment in Divorce Proceeding, Case Digest, Fortwengler v. Fortwengler, Ky Court of Appeals

Fortwengler v. Fortwengler, 2011-CA-0018933-MR and 2011-CA-002077-MR

Published:   Affirming   

County:  Jefferson

Ex-Husband appealed FC’s order terminating his garnishment of maintenance payments to Wife for satisfaction of debt to Ex-Husband’s father as well as FC’s order denying Ex-Husband’s parents’ motion to be joined as parties to the dissolution action in order to collect the debt.

FACTS:

When parties divorced, FC ordered that $20,000 owed to Husband’s father was a marital debt and that each party should be equally responsible.  Ex-Wife appealed from this order.  While the appeal was pending, Ex-Husband filed a non-wage garnishment against Ex-Wife to collect the debt, in the amount of $1,200, the monthly amount of maintenance he had been ordered to pay to her.  Ex-Wife filed motion to quash the garnishment and an affidavit challenging the garnishment, contending that FC did not have jurisdiction of the issue as an appeal was pending, that no judgment had been issued to Ex-Husband’s parents because they were not parties to the case and did not have standing, and that Ex-Husband was attempting to evade his maintenance obligation.  Ex-Husband responded that FC did have jurisdiction because Ex-Wife had not posted supersedeas bond and that FC should set a hearing on the challenge to the garnishment.  After hearing, FC granted Ex-Wife’s motion to terminate the garnishment, noting that no common law judgment has been entered nor had a separate lawsuit been entered by Ex-Husband’s parents; that they could not assign the debt to Ex-Husband to be collected in the dissolution as it appeared to be an attempt to circumvent his maintenance obligation.  Ex-Husband filed a timely appeal of this order.  Subsequently, Ex-Husband’s parents filed a motion to intervene in the divorce proceeding for the limited purpose of setting a payment schedule in order to effectuate Ex-Wife’s payment of her portion of the debt.  FC denied the motion and Ex-Husband timely filed an appeal of that order. 

ANALYSIS:

CA noted that Ex-Husband’s frequent iteration of the phrase “this assignment of error was preserved for appellate review” is insufficient to identify preservation of issues in the record as required by CR 76.12(4)(c)(v), but nonetheless proceeded with review on the merits.

CA disagreed with Ex-Husband’s contention that because the creditor, his father, testified regarding the debt and the debtor, Ex-Wife, had an opportunity to cross-examine the creditor and raise any defenses she may have, his father should not have to obtain a judgment in separate proceeding, and that FC could have joined his father as a party to the case for this purpose under KRS 403.150(6).  CA found the additional parties to be jointed referenced in that statute would not be third-party creditors, but rather parties who may have custody rights to children of the parties.  The proper method for Ex-Husband’s father to collect on the debt is through a common law judgment or through a separate lawsuit.  Regarding his father’s motion to intervene, CA held that denial of the motion was proper as no attempt had been made by Ex-Husband’s father to collect the debt via common law judgment or separate lawsuit. 

Affirmed.

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

One Published Family Law Opinion from Ky Court of Appeals Today

Shafizadeh v. Shafizadeh, jurisdiction, marital property, attorney fees, relocation and modification of custody, discharge of orders of garnishment, personal data identifiers and CR60. 44 pages.

Digest to follow.

Defacto Custodian Case Digest, Spreacker v. Vaughn, el al, Ky Court of Appeals

Spreacker v. Vaughn, et al

No. 2011-CA-002011-ME

Published:   Opinion Affirming  

County:  Greenup

Sandra Spreacker appeals from an order of Greenup Family Court which determined that Denise Vaughn, the paternal Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.

In July, 2010 while baby-sitting B.C., Vaughn noticed severe diaper rash.  She contacted Spreacker who requested that B.C. be returned home the next day.  The next day, however, Spreacker was arrested.  The child’s father was already incarcerated.  Although Vaughn had physical custody, she did not have legal custody, so she filed a petition for juvenile dependency, neglect, and abuse in Boyd County.

On July 7, 2010, Boyd District Court granted emergency custody to Vaughn and granted her custody after a temporary removal hearing on July 12.  On July 27, Vaughn amended her petition to allege B.C. was medically neglected.  After an adjudication hearing on September 14 during which B.C.’s parents admitted to neglect, the court ordered B.C. to remain in Vaughn’s custody.

On January 3, 2011, Vaughn filed a petition for custody in Greenup, her home county.  At a hearing on May 3, 2011, the Greenup Family Court found that Vaughn was a de facto custodian and awarded her custody of B.C.  This appeal followed.

The Greenup Family Court found that B.C. continuously resided with Vaughn who made sure the child received all necessary medical procedures and Vaughn was the primary financial supporter.  B.C. had a Kentucky medical card before custody was awarded to Vaughn and received money from Kinship Care which merely covered daycare expenses.  Spreacker argues that Vaughn was not the primary financial support because of these benefits.  The Court of Appeals disagreed and said the government benefits only supplemented what Vaughn provided and the benefits did not supplant the primary support of the child.

The Court of Appeals distinguished this case from those involving foster parents, who receive support from the Cabinet.  B.C. was never in the custody of the Cabinet and Vaughn is not a foster parent.  KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole” caregiver and financial supporter.

The Court of Appeals found that because the child is under the age of three and was never “placed” by the Cabinet, the statutory criteria was satisfied.  Moreover, the CA held that because Spreacker did not commence a separate action to regain custody, she did not toll the calculation of the statutory time for establishing a de facto custodian.

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

One Published Family Law Opinion from Ky Court of Appeals Today

Spreacker v. Vaughn, et al, de facto custodian. Digest to follow.

Standing to Pursue Child Custody- Same Sex Couples- Truman v. Lillard digest, Ky Court of Appeals

Truman v. Lillard, 2012-CA-000160-ME

Published:   Affirming   

County:  Fayette

Former life-partner of Child’s adoptive mother appealed from FC’s denial of her motion for joint custody, visitation and to set child support due to lack of standing.       

FACTS:

Truman and Lillard were in a marriage-like relationship for four years prior to Lillard obtaining temporary guardianship of her six-month-old nephew, Thomas.  Truman and Lillard had discussed plans to start a family, but at that time were waiting to do so as they were both full-time students.  However, because Thomas was her nephew and needed a healthy home, Lillard began the adoption process, which was finalized in 2008.  The couple was aware that they could not legally jointly adopt Thomas in Kentucky.  Although Truman assisted in raising Thomas as one of his “Mommies”, no steps were taken to establish parenting rights for her.  In February 2010, the couple broke up and Truman left the Mississippi home she shared with Lillard and Thomas.  After a domestic dispute in which Truman attempted to take Thomas, Lillard moved to Lexington with Thomas, obtained a restraining order against Truman, refused further communications from her,  and refused to allow her to spend any time with Thomas.  Truman filed a petition for joint custody and visitation and volunteered to pay child support.  In October 2010, the parties agreed to a visitation order.  Lillard subsequently relocated again, to Bowling Green, and sought a transfer of the case to Warren FC based on her new address, which was denied.  In November 2010, Fayette FC held a hearing based on whether Lillard had waived her superior right to custody pursuant to Mullins v. Picklesimer.  FC orally found she had not, though no written orders were entered.  In August 2011, Truman petitioned the court for a status hearing and for written orders on the waiver issue.  FC did so, finding Lillard had not waived her superior right and that Truman had no custodial rights, and denied Truman’s request for visitation and for a new trial.  Truman appealed, arguing that FC erred by:  1.  Failing to transfer the matter to Warren FC; 2.  Failing to make sufficient findings of fact on visitation; 3.  Incorrectly relying on Picklesimer regarding visitation; and 4.  Entering findings of fact not supported by the evidence. 

ANALYSIS:

CA disagreed with all of Truman’s contentions.  First, Truman’s argument regarding transfer to Warren FC was completely inconsistent with her actions in Fayette FC, and CA held she was judicially estopped from challenging FC’s action which was consistent with her requested relief. 

Regarding the sufficiency of findings on visitation, CA held that FC did make findings in this regard and that FC is not required to address every piece of evidence or argument by counsel for findings to be sufficient.  So long as FC’s findings reflect a good faith effort at fact-finding and complies with CR 52.01, the findings will be sufficient.  CA found that FC’s findings did so and were sufficient.

Next, CA addressed whether FC should have relied on Picklesimer on the visitation issue or if it should have applied the in loco parentis doctrine.  CA noted that this reliance was appropriate and that the in loco parentis doctrine has been replaced by the de facto custodian statute; thus, non-parents may attain standing to seek custody or visitation of a child only if they qualify as de facto custodians, if the legal parent has waived her superior right to custody, or if the parent is unfit. 

Lastly, CA disagreed with Truman’s contention that the findings of fact relative to custody were not supported by the evidence.  CA held, “Although we appreciate the substantial and significant relationship Truman had with Thomas, she was not his parent, she could not qualify as a de facto custodian, and he resided with his only parent, Lillard. … This case serves as an illustration of the exception to Mullins, where we distinguish a non-parent truly acting in the capacity as a parent from the many people who may love, care for and support a child . . . . Not every person who genuinely loves and cares for a child gains custodial rights; waiver requires significantly more. There was no error.

Affirmed.

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

Grandparent Visitation, Palmer v. Brunett digest, Ky Court of Appeals

Palmer v. Burnett, 2011-CA-002097-ME

Issue:  Grandparent visitation

Published:   Affirming   

County:  Jefferson

Maternal Biological Grandmother appealed FC’s order dismissing her motion for grandparent visitation on the basis that she lacked standing.       

FACTS:

In 1990, Michelle voluntarily relinquished her parental rights to Kristen and Michelle’s mother, Kristen’s biological grandmother, adopted Kristen.  In 2004, Kristen gave birth to Alexis.  Despite termination of Michelle’s parental rights to Kristen, Michelle and her husband developed a close relationship with Alexis.  Alexis even resided with them for several months.  However, in 2010, Michelle and her husband obtained DVOs against Kristen on the basis that she threatened to kill them.  Kristen and Alexis’ father then refused to allow Michelle and her husband to have contact with Alexis.  Michelle and her husband initiated a custody action, asserting standing as de facto custodians.  FC dismissed the custody action, finding that Michelle and her husband had not been Alexis’ primary caregivers for at least one year prior to filing the petition as required under KRS 403.270.  Michelle and her husband then filed a grandparent visitation action, which FC also dismissed, finding that due to the termination of Michelle’s parental rights to Kristen, she was not legally Alexis’ grandmother (and her husband, lacking even a biological relationship to Alexis, was also not a legal grandparent.)  However, FC implored CA to overturn its finding regarding standing, finding that a continued relationship with Michelle and her husband was in Alexis’ best interests.  Michelle and her husband appealed, although no argument was presented on husband’s behalf. 

ANALYSIS:

CA noted that termination of parental rights constitutes a permanent severance of the parent-child relationship—it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and the child.  All parental rights are then vested in the adoptive parent.  Thus, Michelle’s termination of her parental rights to Kristen included termination of a future right to a relationship with Alexis, and Kristen and Michelle became sisters for legal purposes, meaning Michelle is legally considered Alexis’ aunt.  As there is no statutory protection for visitation rights of aunts and uncles, Michelle had no standing to pursue visitation of Alexis.

Affirmed.

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

Waiver of Superior Right to Child Custody, Johnson v. Overbee digest, Ky Court of Appeals

Johnson v. Overbee, 2011-CA-002097-ME

Published:   Affirming   

County:  Lee

Biological parents appealed FC’s ruling denying their petition for custody of Child.      

FACTS:

Child of Biological Mother and Father tested positive at birth for multiple illicit drugs, and Cabinet filed and was granted a petition for emergency custody.  After one and a half month removal, Biological Parents regained custody of Child.  Four months later, Biological Mother shot Child in abdomen while attempting to shoot Biological father—Biological Father had held Child in front of his body as a shield and Biological Mother shot anyway.  Cabinet was again granted emergency custody, but this time placed Child with Biological Mother’s Cousin and her husband.  FC ultimately conducted adjudication hearing and granted permanent custody of Child to Cousin and her husband.  Biological Parents were present at the hearing and represented by counsel, and made no objection to the award of custody, nor did they appeal that award.  Almost two years later, Biological Parents filed a petition for custody of Child.  FC issued an Order on that petition almost four years later, in which it determined that Biological Parents had waived their superior right to custody of Child, and that it was in Child’s best interests to remain in custody of Cousin and Husband.  Biological parents filed this appeal.      

ANALYSIS:

CA noted that while biological parents have a superior right to custody of their children, a third party may acquire standing to obtain custody of a child if the biological parent is unfit or if the biological parent waived his or her superior right to custody.  For the waiver to be effective, the biological parent must have intended to voluntarily and indefinitely relinquish custody of the child.  CA found that Biological Parents did just that at the adjudication hearing, and their failure to file an appeal further evidenced that intent, demonstrating by clear and convincing evidence that Biological Parents waived their superior right to custody of Child.  CA noted that there also appeared to be substantial evidence of Biological Parents’ unfitness, but such a finding was rendered moot by the finding regarding waiver.

Affirmed.

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

Termination of Parental Rights, Case Digest, B.M.H. v. CHFS, Ky Court of Appeals

B.M.H. v. Commonwealth of Kentucky, Cabinet for Health and Family Services; et al

No. 2012-CA-000194-ME

Published: Opinion Affirming

County: Jefferson

B.M.H. appeals from Order of Jefferson Circuit Court, Family Division, denying his motion to dismiss its September 22, 2011, judgment terminating his parental rights to I.C.D.

I.C.D. was born to N.D. on August 8, 2010.  Both mother and child tested positive for cocaine metabolite and a report was filed with the Cabinet for Health and Family Services.  The Cabinet obtained an emergency custody order & filed a petition alleging I.C.D. was an abused or neglected child, naming B.M.H. as the father.  The Cabinet was granted temporary custody.  On November 8, 2010, the Cabinet filed a petition for involuntary termination of B.M.H.’s parental rights.  B.M.H. was incarcerated at the time of the hearing and participated telephonically.  The Family Court terminated B.M.H.’s parental rights to I.C.D.  B.M.H. files this appeal.

B.M.H. argues that he should not be included in the action because he is not the putative father.  In an action to terminate parental rights, KRS 625.060 requires the Cabinet and the biological parents, if known, to be parties in the action.  Putative fathers are not necessary parties if exempted by KRS 625.065.  The statute requires a putative father to participate in an action to terminate parental rights only if one of six conditions exist.  If none of the conditions exist, the putative father has no parental rights to the child.

At the hearing, a social worker employed by the Cabinet, testified that the mother identified B.M.H. as the father in an affidavit, but no affidavit was introduced as evidence.  Since B.M.H. did not object to the testimony about the affidavit, any error in its omission was not preserved for review.

B.M.H. is without parental rights to I.C.D. either by the Court’s order or by the effect of KRS 625.060(2).  Since he would have no rights irrespective of the admission of testimony regarding N.D.’s affidavit, the Court of Appeals was unable to say that the alleged error resulted in manifest injustice to B.M.H.  Manifest injustice requires a showing that a different result would have occurred or the error was so fundamental it threatens a party’s right to due process.

The order of Jefferson Circuit Court, Family Division, is affirmed.

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

Termination of Parental Rights Opinion Issued by Ky Court of Appeals Today

B.M.H. v. Cabinet for Health and Family Services, et al. Digest to follow. 

Three Family Law Published Opinions from Ky Court of Appeals November 2, 2012

Truman v. Lillard, trial court finding that adoptive mother had not waived her superior right to custody over former partner was affirmed.

Palmer v. Burnett, et al  grandparent lacks standing to obtain grandparent visitation where grandparent voluntarily terminated parental rights to her daughter, prior to birth of grandchild.

Johnson v. Overbee, appeal from order denying petition for custody of biological children affirmed.

Digests to follow.

 

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

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

Published:   Reversing and Remanding   

County:  Barren

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

FACTS:

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

ANALYSIS:

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

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

Reversed and Remanded for an evidentiary hearing.

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

Division of Marital Property, Ford v. Perkins, Digest, Ky Supreme Court

Ford v. Perkins, 2011-SC-000330-DG

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

County:  Jefferson

 SC granted Ex-Husband’s motion for discretionary review regarding the appropriate distribution of his IRA account, which Ex-Husband no longer disputed was marital property.   

 FACTS:

Husband and his employer began contributions to a 401(k) plan in 1992.  Husband and Wife married in December 1998.  Wife spent most of marriage as a homemaker.  Husband’s and his employers’ contributions to the plan continued until January 2001 when Husband resigned; he subsequently rolled the 401(K) over to an IRA.  Husband and Wife separated in November 2007 and divorced in December 2008.  All matters of support and property division were agreed upon except for the division of Husband’s IRA.  At the hearing on this issue, Husband only submitted records of contributions made after the marriage, from August 2000 through January 2001, as both his and his former employers’ other records had been destroyed in a flood.  He submitted no records regarding the value of the account on the date of marriage, but he did submit the values when the 401(k) was rolled over to an IRA, in May 2001.  Husband argued to the trial court that the contributions from records submitted to the trial court should be extrapolated to establish the amount that was contributed during the marriage and that the remainder should be his nonmarital property.  FC found that the entire account was marital as Husband failed to meet the burden of proof as the proponent of a nonmarital property interest.  FC then found that the account should be divided equally between the parties as of the date of decree.  Husband appealed this ruling to CA, which affirmed FC’s finding that the account was marital property; however, CA determined that because Wife presented no proof that she made any direct or indirect contribution to the account, an equal division of the account was not supported by the record; CA remanded to FC with instructions to award Husband 100% of IRA. 

Ex-Wife moved SC for discretionary review, asking 1.  Whether FC’s finding that parties were married when an asset was acquired is sufficient to support equal division of the asset under Gaskill v. Robbins; and 2.  Whether, on appeal, CA may make a different award of the division of marital property without applying KRS 403.190 factors. 

 

ANALYSIS:

1. Whether FC’s finding that parties were married when an asset was acquired is sufficient to support equal division of the asset under Gaskill v. Robbins:

 SC found that this premise boils down to requiring FC’s presumption that both parties to a marriage contribute to assets acquired during the marriage.  SC disagreed.  KRS 403.190 requires FC to consider the contribution of each spouse to acquisition of the asset (including homemaker duties); value of the property set aside to each spouse; duration of the marriage; and economic circumstances of each spouse when the division is to become effective.  SC noted that Gaskill emphasized many intangible contributions to acquisition of an asset that FC must consider in its property division determination, but the language does not purport to create a presumption. 

        2.    Whether, on appeal, CA may make a different award of the division of marital property without applying KRS 403.190 factors:

SC agreed with Ex-Wife, noting that FC committed same error as FC when it failed to consider all factors of KRS 403.190 when it awarded 100% of IRA to Husband.  CA based its decision on evidence of contribution, but did not consider the other three factors.  FC’s findings of fact were insufficient, and CA should have remanded for further proceedings. 

Reversed and Remanded for to FC for additional fact-finding regarding KRS 403.190 factors.

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

Grandparent Visitation, Walker v. Blair, Ky Supreme Court, Digest of Opinion

Walker v.Blair

2012-SC-000004-DGE

Published:  Reversing and Remanding

County:     Jefferson

 In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court recognized the constitutionally protected liberty interest of parents to raise their children without government interference.  The Supreme Court of Kentucky accepted discretionary review of this case to consider interpretation of KRS 405.021(1) consistent with the principles articulated in Troxel.

Appellant, Michelle Walker, and Steve Blair had one child, B.B.  Steve committed suicide and thereafter his mother, Appellee, Donna Blair, filed a petition to establish visitation with five-year-old B.B.  The trial court held an evidentiary hearing in which both parties and Blair’s ex-husband, Martin Blair, B.B.’s paternal grandfather, testified.

Blair testified that she and B.B. had a close, loving relationship.  She was taking three antidepressant medications, but testified that her mental condition is stable.  Walker testified that Blair had infrequent contact with B.B. and that the child had not asked to call or see his grandparents.  Walker said she would follow the recommendation of B.B.’s therapist regarding his contact with Blair.

The trial court found it was in B.B.’s best interest to grant visitation to Blair. Working with B.B.’s therapist, the eventual goal was at least one overnight visit per month and reasonable visitation during holidays.  The trial court denied Walker’s motion to alter, amend or vacate, and on Walker’s appeal, the Court of Appeals affirmed the trial court.

The trial court’s findings are reviewed applying the clearly erroneous standard, but the interpretation of KRS 405.021(1) and the application of the appropriate standard are issues of law to be reviewed de novo.

The Kentucky Supreme Court last addressed this issue in 1992 in King v. King, 829 S.W.2d 630 (Ky. 1992).  KRS 405.021(1) provides that the court may grant reasonable visitation to grandparents if it determines that it is in the child’s best interest, based on a preponderance of the evidence standard.

Eight years later, the Supreme Court of the United States decided Troxel v. Granville, involving a Washington statute which permitted any person to petition for visitation rights if it served the child’s best interest.  The trial court granted visitation to a child’s grandparents, but on appeal, the Washington Supreme Court held that the statute unconstitutionally interfered with parents’ fundamental right to raise their children.  The U.S. Supreme Court affirmed the state supreme court’s decision.  A majority of the court agreed that under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody and control of their children and concurred that there is a presumption that fit parents act in the best interest of their children.

Scott v. Scott, 80 S.W.3d 447 (Ky. App. 2002), overruled by Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), interpreted KRS 405.021(1) in light of Troxel, holding that grandparent visitation could only be granted over the objection of a fit parent if it is shown by clear and convincing evidence that the child would be harmed by deprivation of visitation with the grandparent.

Just two years later, the Court of Appeals, sitting en banc, decided the Scott panel misread Troxel and overturned Scott in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004).  The Vibbert court required grandparents to prove by clear and convincing evidence that the requested visitation is in the best interest of the child and included a list of factors to consider.

Because the King decision effectively placed grandparents and parents on equal footing in determining grandparent visitation rights and did not recognize a presumption in favor of a fit parent’s decision to deny visitation, Troxel overturned King.  KRS 405.020(1), however, is not unconstitutional, and the modified best interest standard established in Vibbert is approved.

The starting point for a trial court’s analysis under KRS 405.021(1) is that a fit parent acts in the child’s best interest.  The grandparent must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest.  Lacking such evidence, parental opposition alone is sufficient to deny grandparent visitation.

The trial court should not attempt to determine whether the parent is fit before presuming the parent is acting in the child’s best interest.  The trial court must presume the parent is fit and turn to the Vibbert factors to decide if the parent is mistaken in the belief that grandparent visitation is not in the child’s best interest.

If a grandparent demonstrates that harm to the child will result from deprivation of visitation with the grandparent, this is strong evidence that the visitation is in the child’s best interest.  The factors in the Vibbert modified best interest analysis must be considered.  A trial court may not override parents’ constitutional liberty interest in rearing their child just because the judge believes a better decision could be made.

The trial court cited Baker v. Perkins, 774 S.W.2d 129 (Ky. App. 1989) for the proposition that parental opposition is not sufficient alone to deny the grandparent visitation, which does not afford a fit parent’s decision the presumption required by Troxel.  To the extent that Baker v. Perkins conflicts with the standard, it is overruled. The trial court’s reliance on King is also erroneous, because after Troxel, King is no longer good law.

The Supreme Court remanded to the trial court for a new evidentiary hearing applying the modified best interest standard consistent with the opinion.

The Court properly denied Appellant’s motion to dismiss because the legislature did not intend to force a grandparent whose child is deceased to choose between seeking noncustodial visitation and pay child support or forfeiting visitation altogether.

The decision of the Court of Appeals is reversed, the trial court’s visitation order is vacated, and this case is remanded to the trial court with directions to conduct a new evidentiary hearing applying legal standards consistent with this opinion.

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

 

One Published Opinion from Ky Court of Appeals Today

J.D.C. v. Cabinet for Health and Family Services, et al.  An alleged father is entitled to an evidentiary hearing before a judgment of paternity is entered.

Second Family Law Published Opinion From Ky Supreme Court Today

Ford v. Perkins, division of marital property. Digest to follow. 

Ky Supreme Court Rules On Grandparent Visitation Today

Grandparent must prove by clear and convincing evidence that visitation over the objection of a parent is in a child's best interest. Proof of a loving relationship alone is not sufficient. Walker v. Blair, digest to follow. 

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

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

Issue:  Rule 60.02 motion, personal jurisdiction

Published:   Reversing and Remanding   

County:  Anderson

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

FACTS:

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

ANALYSIS:

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

Reversed and Remanded.

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

Maxwell v. Maxwell, Ky Court of Appeals, Child Custody, Lesbian Mother

Maxwell v. Maxwell

No. 2012-CA-000224-ME

Published:  Opinion Reversing and Remanding

County:     Hardin

Angela Maxwell appeals the decision of the Hardin Family Court to award sole custody of her three children to their father, Robert Maxwell.

The parties were married in October, 1994 and three children were born to the marriage.  The parties separated in September, 2010 and Robert filed the petition for dissolution and moved for sole custody of the children.  Angela responded to the petition and asked for joint and shared custody.

In October, 2010, the parties entered into a “pre-temporary” agreed order providing for joint custody and alternating physical custody on a week-to-week basis.  The order also prohibited a non-family guest to stay overnight when the parent had physical custody of the children.

In March, 2011, a mutual restraining order was issued after motions were filed by both parties.  A settlement agreement was entered in January, 2011, reserving child-related issues.  A hearing on those matters was held in September, 2011. Robert requested joint custody and designation as primary residential custodian.  Angela requested joint custody pursuant to the current arrangement and that the prohibition on non-family guests spending the night during parenting time be lifted.

Witnesses included relatives, a teacher, a soccer coach, and the two older children.  The children were happy with the parenting time arrangement and both said they liked Angela’s friend, Angel.

The trial court’s order was entered January 5, 2012 awarding Robert sole custody with Angela’s visitation schedule set by the court.    The allotted parenting time was less than the minimum guidelines in the local rules.  Both parties were prohibited from cohabitating with another adult during the time they had physical possession of the children, unless they were married to that person.

The standard of review is whether the trial court’s factual findings are clearly erroneous.  The reviewing court determines whether the trial court applied the current law and whether the trial court abused its discretion.

Angela argued the family court erred by 1) considering factors unrelated to the best interests of the children, 2) the award of sole custody to Robert was erroneous and an abuse of discretion, 3) the court based its decision on inadmissible evidence, and 4) it was error to restrict the parties from cohabitating during parenting time. Robert countered that the court’s ruling was not made on Angela’s sexual orientation, was not an abuse of discretion, and was based on the best interests of the children in accordance with statutory factors.

The Court of Appeals applied the facts of the case to the statutory factors listed in KRS 403.270(2).  The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children.  The Court of Appeals held that being a member of a same-sex partnership alone does not meet the criterion of sexual misconduct and to use her sexual orientation as a determinative factor violates Angela’s right to due process, equal protection and fundamental right to parent her children.  The trial court found that Angela’s relationship was not in the best interests of the children, but provided no factual findings in support.  Harm must have an evidentiary basis and cannot be assumed.

The issue of restricting the parties from cohabitating with a person to whom they are not married was to be retried on remand with the understanding that cohabitation of any party is a factor, but not dispositive on its own.  The family court’s decision should be based on the best interests of the children.

The order of the Hardin Circuit Court is reversed and remanded for proceedings consistent with the opinion.

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

 

 

Two Published Family Law Opinions from Ky Court of Appeals Today

Maxwell v. Maxwell, award of sole custody to father reversed where trial court relied heavily on mother’s same-sex relationship.

Soileau v. Bowman, trial court reversed for denying CR60 motion where respondent was served only by warning order attorney and the court lacked personal jurisdiction.

Digests to follow.

 

Stephen Stinson v. Tracy Stinson, Ky Court of Appeals, Contempt When Domestic Violence Order Not Served

Stephen Stinson v. Tracy Stinson

No. 2011-CA-001312-MR

Published:  Opinion reversing

County:     Barren

Stephen Stinson appeals from an order of Barren Family Court holding him in contempt of an amended domestic violence order for violating the no contact or communication provision.

A decree dissolving the parties’ marriage was entered in November, 2009.  In September, 2009, Tracy sought a DVO because Stephen’s telephone calls, text messages, and other threats caused her to fear for her safety and that of her children.  The court entered an emergency protection order and scheduled a hearing the next month.

After the hearing on October 5, 2009, a DVO forbidding Stephen from having any contact with Tracy was entered, to be effective until October 5, 2012.  Stephen was also required to complete domestic violence counseling and an alcohol and drug education program and to provide the court with certificates of completion by July 1, 2012.  He did not file the certificates of completion.

Pursuant to the order entered October 5, 2009, the court reviewed the matter on August 17, 2010 with neither party appearing in court. Stephen was held in contempt for failure to comply with the terms of the DVO and he was sentenced to ten days in jail, suspended on condition that he file the certificates by April 1, 2011.  The matter was set for review on May 10, 2011.  In a separate order, the court entered an amended DVO providing for the new date for completion of the programs and extending the amended DVO until October 5, 2012.  Two attempts to serve Stephen were returned as undeliverable.

On February 25, 2011 Tracy filed a domestic violence show cause order after she received a threatening letter from Stephen.  Both parties appeared, without counsel, on March 18, 2011.  The court allowed Stephen to file an affidavit of indigency and subsequently appointed the DPA to represent him.

At the rescheduled show cause hearing held June 24, 2011, Stephen argued that since he had not been served with the amended DVO, he could not be held in contempt for violating its terms, and that the allegedly contemptuous behavior occurred after expiration of the original DVO.  After hearing testimony from the parties, the court found Stephen in contempt.  He was sentenced to ten days in jail, suspended on the condition that he purge himself of contempt by complying with the amended DVO.  This appeal followed.

Stephen contests entry of the original DVO pursuant to the palpable error rule of RCR 10.26, arguing that Tracy failed to establish that domestic violence had occurred or was likely to occur in the future.  The Court of Appeals held that Stephen’s failure to file a timely appeal from the original DVO precluded him from contesting the original DVO in this appeal.

Stephen further argued that he could not be held in contempt for failing to comply with the amended DVO because he was never served.  Notice and service requirements apply to all orders of protection issued pursuant to KRS 403.715 and KRS 403.785.  Until an individual has been served with an amended DVO or notified of its existence and terms, there can be no finding of a violation of its terms.  Therefore, the June 24, 2011 contempt order was improperly entered and must be reversed.

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

 

B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al, Ky Court of Appeals, Sibling Visitation Following Adoption

B.L.M. and B.A.M. v. A.M., L.M., L.S.M., et al

No. 2011-CA-000333-ME

Published: Opinion Reversing and Remanding

County: Jefferson

Appellants appeal from the Jefferson Circuit Court’s denial of a CR 60.02 motion to set aside an order in an adoption case requiring visitation between adopted children and their biological siblings.

In 2007, A.M., L.M., and L.S.M. were placed in Appellants’ foster care by the Cabinet for Health and Family Services.  Parental rights to the children had been terminated by judgments entered earlier that year.  The children have three older biological siblings who were not placed with Appellants.

In January, 2009, Appellants filed petitions for adoption of all three children.  At a hearing, the GAL and the family court opined that the adoption was in the best interest of the children so long as Appellants agreed to reasonable visitation with their biological siblings.  The family court granted the adoption petitions and entered into the record a statement from Appellants agreeing to siblings visitation after the adoption and a notation that violation is punishable by contempt.

 In June, 2010, the GAL filed a motion to hold Appellants in contempt for violating the sibling visitation order.  When family court scheduled a contempt hearing, Appellants filed a CR 60.02 motion to set aside the visitation order arguing that family court exceeded its jurisdiction in entering and attempting to enforce the order.  When family court passed the motion to the contempt hearing, Appellants filed a petition for a writ of prohibition and a motion for emergency relief in the Court of Appeals.  Both were denied on the basis that extraordinary relief was not required because the parties had a remedy by appeal from the contempt hearing.  No ruling was made concerning the validity of the visitation agreement.  When the family court denied Appellants’ CR 60.02 motion, this appeal followed.

KRS 405.021 provides that grandparent visitation, if already established by court order, could be enforced even after the termination of parental rights.  Our legislature has not provided for visitation by family members except grandparents following such termination.

In this case, once the judgment of adoptions was entered, there were no legal ties between A.M., L.M., and L.S.M. and their biological siblings.  The Appellants, as the adoptive parents, could have allowed sibling visitation but to judicially require such visitation in the absence of any statutory authority contravenes the legislative intent and Kentucky law.

Therefore, Jefferson Family Court lacked authority to order sibling visitation and Appellants were entitled to CR 60.02 relief.  The Order was vacated and remanded to family court for any additional action required.

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

No Published Family Law Opinions from Ky Court of Appeals October 12, 2012

Wethington v. Coffey, Ky COA, Standing to Pursue Child Custody

Wethington v. Coffey, 2011-CA-000555-ME

Published:   Vacating and Remanding   

County:  Green

Father appealed FC’s order awarding joint custody of his children along with the children’s deceased mother’s nephew and wife, contending that deceased mother’s nephew and wife did not have standing to pursue custody. 

FACTS:

Father and Mother shared joint custody of twins after divorce, with Mother providing twins’ primary residence and Father receiving standard visitation schedule.  Three years’ later, Father’s visitation was suspended following a social services investigation alleging he had abused his minor daughter (the twins’ half-sister).  Father later received visitation once again, but for minimal periods of time.  However, he consistently failed to exercise the time he was given and had very little involvement in the twins’ lives over the next six years while Mother was still alive.  Meanwhile, Mother’s nephew, his wife and their children, who were approximately the same age as the twins, spent substantial amounts of time with them during the same time period. 

The day that Mother died, Nephew and Wife filed petition for emergency custody, indicating in the Petition that Father’s whereabouts were not known.  FC granted them emergency custody and two days later, they were granted temporary custody after a temporary removal hearing.  They filed for permanent custody a few weeks later.  After another temporary custody hearing a few months later, the parties agreed that Father would have visitation with children 4 days a week for the next 2 months.  Father again neglected to exercise his visitation.  FC drastically limited visitation again but Father still did not exercise all time that was allotted to him.  After final hearing, FC found Nephew and Wife had standing pursuant to KRS 403.822(1)(b)1 and KRS 403.800(13); that Father should not have custody because he had inflicted emotional harm on the twins, exhibited moral delinquency, and had abandoned the twins; and that Nephew and Wife should share joint custody with Father but Nephew and Wife would provide primary residence for twins with Father receiving the same drastically limited visitation.  Father appealed.

ANALYSIS:

CA agreed with Father that Nephew and Wife did not have standing to pursue custody action.  While CA agreed that KRS 403.822 was appropriately relied upon by FC in its analysis of standing in this case, FC misinterpreted and misapplied KRS 403.800(13), which defines “a person acting as a parent” who might have standing under KRS 403.822.  Such a person must have legal custody or claim a right to legal custody AND have or have had physical custody of the child for six months of the year preceding the custody action.  Here, Nephew and Wife had custody for less than a month prior to filing their petition.  CA disagreed with Nephew and Wife’s interpretation that the six month limitation should only be imposed on parties who no longer have physical custody, and thus did not apply to them as the custodians at the time of filing.  CA, on a matter of first impression, found that the six month requirement applies to any party seeking custody, regardless of the current physical custody status.  Thus, Nephew and Wife did not have standing to pursue custody of twins.

Vacated and Remanded.

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

Hempel v. Hempel, Ky COA, Parenting Time, Imputed Income, Property Division

Hempel v. Hempel, 2011-CA-000763-MR

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

County:  Oldham

Ex-Husband appealed FC’s order, contending that FC erred by imputing income to him for child support purposes, by arbitrarily reducing his parenting time, and by making an unequal division of the marital estate. 

Parenting Time:

CA agreed with Ex-Husband that there was no substantial evidence to support FC’s finding that he had not regularly exercised the parenting time allotted to him before trial, and that evidence clearly showed that he saw children on an almost daily basis.  CA held that FC clearly erred on this issue and remanded for further consideration of the issue.

Child Support:

CA agreed with Ex-Husband that as there was no evidence introduced to show the strength or nature of prevailing job opportunities or the expected earnings levels in the community, and as FC gave no explanation as to how it determined that Ex-Husband could be expected to earn at the same level as Ex-Wife, there were inadequate findings for CA to conduct meaningful review of the decision and the issue was remanded to FC for further findings. 

Division of Marital Estate:

CA did not agree with Ex-Husband that FC erred by not giving him equal share of marital estate.  CA found no evidence that FC considered any factors other than statutory criteria and that FC did not abuse its discretion in the division. 

UGMA accounts:

CA did not agree with Ex-Husband that FC erred by failing to permit him to oversee the Uniform Gifts to Minors Act accounts of the children.  CA noted that under statutory provisions, Ex-Wife as monitor of the accounts must keep records available for inspection and that Ex-Husband was permitted to inspect the account. 

Affirmed in Part, Vacated in Part, and Remanded.

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

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

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

No. 2012-CA-000358-ME

Published: Opinion Vacating and Remanding

County: Jefferson

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

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

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

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

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

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

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

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

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

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

Two Published Famly Law Opinions from Ky Court of Appeals Today

Wethington v. Coffey, standing to pursue child custody

Stinson v. Stinson, contempt not available when respondent not served with DVO

Digests to follow.