Divorce Law Journal

No To Be Published Ky COA Family Law Opinions 8/15/08

November 6-8, 2008 AAML Chicago Seminar

One does not have to be a Fellow of the American Academy of Matrimonial Lawyers to attend its outstanding CLEs. Here is the lineup from our President, James A. Hennenhoefer:
We begin with Thursday’s CLE entitled “Saving the Monkey From the Middle: When fabricated allegations of child abuse become psychological abuse.” This program presented by Allison F. DeFelice, Ph.D. of Columbia, South Carolina, will deal with the disturbing subset of cases in which a child makes an allegation of sexual abuse but fabrication is believed to be an alternative explanation of merit. Pediatric Condition Falsification (PCF) is described as a form of psychological abuse. Valuation options, case examples and legal interventions will be discussed. In the second program, you will be a part of a dynamic program on cross examination of experts and other witnesses with panel moderator, Nicholas Leto, Jr. and panelists, Sandra Morris and Steve Wagner, all of whom are AAML Fellows. The panel will focus on various cross examination techniques, making use of movies and TV as part of the analysis. Discussion will also make use of Roger Dodd’s book on cross examination and Steve Wagner’s article on “Boxing in the Witness.”

Friday’s CLE program will be “Complex Estate Planning and Asset Protection Plans and their Impact on Divorce.” In an interactive, real live fact pattern, the panel, two AAML Fellows and two ACTEC (American College of Trust and Estate Counsel) Fellows, will discuss tax implications, of complex estate planning and asset protection, and the impact on divorce, support and property division. Various strategies to use in negotiating and litigating settlements will be presented. The fact pattern will include installment sales, qualified personal residual trusts, family limited partnerships, asset protection trusts, irrevocable life insurance trusts, charitable remainder trusts and other wealth transfer strategies commonly used by wealthy couples. AAML Fellows Brian Webb from Dallas, Texas and Philip Schwartz from Fairfax, Virginia will be presenters. Phil has spoken extensively on off-shore trusts and other asset protection plans and Brian has also litigated many of these issues. From ACTEC, the presenters are James “Jim” D. Spratt, Jr. of King & Spalding, LLP in Atlanta, Georgia and John “Jack” A. Terrill II of Heckscher, Teillin, Terrill & Sager, PC in West Conshohocken, Pennsylvania. Both Jim and Jack are frequent lecturers on these topics and have been expert witnesses or co-counsel in divorce litigation to assist counsel in addressing issues of this nature.

Friday’s second session is “Top Ten Mistakes Experienced Lawyers Make With QDROs.” A witty and pointed 30 minute presentation on the common mistakes that are made, even by the experts, when negotiating and drafting language in settlement agreements and orders for the division of retirement benefits. Emily McBurney, one of the foremost QDRO experts in the Southeast, will explain how to avoid these potential errors and protect yourself and your clients. Emily is a partner in the law firm of Davis, Matthews and Quigley, PC in Atlanta, Georgia and frequently lectures on retirement benefits and QDROs across the country.

Ending the day’s session is “Executive Compensation” which will focus on executive compensation packages, including benefits under non-qualified plans (stock options and restricted stock, “top hat” plans, and other deferred compensation), change of control provisions, severance packages, (as golden handcuffs) and other benefits for the highly compensated. You will learn what to look for, and what to do when you find. You will receive suggestions and tips on how to handle such issues in divorce, including what can be done considering securities law. AAML Fellow Brenda Keen and Geoff Poll, CPA from Houston, Texas will be leading the panel discussion. Geoff is a tax partner and shareholder with Ferguson Camp Poll P.C. and a frequent lecturer and expert witness on these issues. Brenda Keen has litigated and spoken on these issues extensively.

Rounding out our three days of CLEs will be a morning filled with custody trial issues. In the first session AAML Fellow Caroline K. Black of Tampa, Florida joined by Deborah O. Day, Psy.D. of Psychological Affiliates of Winter Park, Florida will address “How to Overcome a Bad Custody Evaluation.” The second program finds Deborah O. Day joined by AAML Fellow Richard West of Orlando, Florida enlightening us on “What You Must Know About the Tests Used by Psychologists.” And last, but not least, you won’t want to miss “How to conduct an Effective Cross Examination of a Psychologist in a Custody Case” presented by our former President Gaetano Ferro. Come join us in Chicago!
For registration info email office@aaml.org.

No To Be Published Family Law Ky COA Cases Today

McCary v. Mitchell, Ky COA, Guardianship Custody Between Non-parents

McCary et al. v. Mitchell, et al. –S.W.3d—(Ky.App. 2008), 2007 CA-000322-DG

The Mitchells, maternal aunt and uncle of B.E.M., petitioned the court to be appointed guardians and conservators of the estate of their niece. B.E.M.’s mother was murdered by the child’s father, and the child was currently living with her paternal aunt and uncle, the McCarys. The district court ordered that the Mitchells be appointed the co-guardians and co-conservators of the estate of the child, and that the Mitchells take physical possession of the child after the completion of the 2005-06 school year. The Circuit Court affirmed. The Court of Appeals granted discretionary review.
The Court first found that the KRS 403.270 de facto custodian provision does not apply to guardianship proceedings under KRS 387.032. Therefore, the McCarys did not have a superior right to the child. Both parties were to be given equal consideration. The Court then found that the district court did not abuse its discretion in finding that the child’s best interest was served by appointing the Mitchells as guardians. There was sufficient evidence to support the court’s finding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ky COA Family Law Decisions Today

McCary, et al v. Mitchell,et al is a to be published decision holding the defacto custodian provisions of KRS 403 are not applicable to guardianship contest under KRS 387 between non-parents.

While we don't usually report on decisions designated not to be published unless discretionary review is granted, Williamson v. Ballard is an important domestic violence case regarding dismissal, right to cross-examination and the perils of pro se representation. Even lawyers should find useful the reminder that the civil rules of procedure apply in domestic violence hearings.

Digests to follow.

Cameron Oral Arguments On August 14, 2008

The Kentucky Supreme Court will hear oral arguments in Cameron v. Cameron, digested here, on August 14, 2008 at 11am. You can watch live online. Briefs online: Appellant, Appellee, Reply.

Downs v. Downs, Ky COA, Interpretation of Marital Settlement Agreement Re Life Insurance

Downs v. Downs
2007-CA-000979
PUBLISHED: AFFIRMING
PANEL: CLAYTON PRESIDING; VANMETER AND KNOPF CONCUR
COUNTY: NELSON

At TC, Adult Child argued that per terms of Marital Settlement Agreement between his biological parents, a constructive trust should be imposed on deceased Dad’s life insurance proceeds. Adult Child appealed from TC’s order granting Summary Judgment to Stepmother.

FACTS:
Adult Child was born in 1981 and his biological parents divorced in 1989. Per the terms of the parents’ Marital Settlement Agreement, the parents were to maintain any life insurance policies with “the infant child named as beneficiary.” Dad remarried in 1990 and died in 2002. His three life insurance policies all listed his wife (Stepmother) as beneficiary. Adult Child petitioned TC for imposition of constructive trust of the life insurance proceeds. Stepmother moved for and was granted summary judgment.

Analysis:
Stepmother first argued that Adult Child’s action was time-barred by the statute of limitations as Adult Child was seeking enforcement of a contract, which has a 15 year limitation per KRS 413.090. However, CA noted that the fifteen year period does not begin until the breach of the contract occurs, and that, furthermore, KRS 413.170 extends the time limit for minors to fifteen years from the time that the age of majority is reached. Thus, under either approach, the action was not time-barred.

Stepmother next argued that the words “infant child” were not words of identification but rather limited the referenced requirements to the child’s infancy, and thus Dad was not required to keep Adult Child as beneficiary once he reached the age of majority. TC and CA agreed. CA noted that only ambiguous contracts can be interpreted with the use of extrinsic evidence, and that if a contract can be interpreted with only one reasonable interpretation, it is not ambiguous. CA found that, due to the use of the terms “infant child” and “child” throughout the Marital Settlement Agreement, the only reasonable interpretation was that the parents were to maintain any life insurance policies with the child during his minority. Thus, Dad was not required to list Adult Child as a beneficiary on any of his life insurance policies.

TC affirmed.

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

Denton And Theissen Newest Ky AAML Fellows

Timothy B. Theissen, Strauss & Troy, L.P.A. of Covington, KY and Joy D. Denton, Harned Bachert & Denton, LLP of Bowling Green, KY have been elected Fellow of American Academy of Matrimonial Lawyers. Requirements for membership include passing an oral and written examination on wide ranging issues pertaining to matrimonial and family law, at least 10 years legal experience with a 75% minimum concentration in matrimonial law, recommendations from judges and other AAML Fellows and demonstration of significant involvement in the study or improvement of matrimonial law as well as aspiration to the ethical standards set forth in the Bounds of Advocacy. Welcome!

We hope to announce another new fellow soon; sometimes the applications are processed at varying speeds.

No To Be Published Ky COA Family Law Opinions July 25, 2008

No Ky Family Law COA Cases To Be Published July 18, 2008

Ky COA Issues One To Be Published Family Law Opinion Today

Downs v. Downs. Marital Settlement Agreement named infant child Jeremy beneficiary of life insurance. Father died after child was an adult and his new wife was beneficiary. Child sued new wife under constructive trust theory. Trial court granted summary judgment to new wife. Words “infant child” described child’s status as a minor and thus MSA provided no obligation to name child beneficiary after he became an adult.

Z.T. v. M.T. et. al., Ky, Dependency,Abuse And Neglect, Court Interview Of Child

Z.T. v. M.T. et. al., --S.W.3d—(Ky. App. 2008); 2007-CA-001444-ME

Father appealed findings in a dependency, abuse, and neglect case, in which it was alleged that the father sexually abused his eldest child, M.T. Prior to August 2005, the maternal grandparents took M.T. to the hospital where she was examined for sexual abuse, which was not substantiated. In August 2005, the mother and the maternal grandparents took M.T. and her sibling, K.T., to the hospital to be examined for sexual abuse. M.T. admitted to the examiner that she had been abused by her father, the younger child denied any abuse, and no physical evidence was found that either child had been abused. A dependency, abuse, and neglect petition was filed in November 2005 and the court issued a temporary order prohibiting the father from having contact with any of his four children.
In January 2006, K.T. told an examiner at the hospital that she had been sexually abused and had witnessed her father sexually abusing her siblings. The father was then charged with four counts of sexual abuse in the first degree.
The first adjudication of the abuse petition was overturned due to the district court finding the children were abused based solely on the mother’s admission. At the second adjudication, held after the father was found not guilty of the criminal charges, the court found that M.T. had been sexually abused. The allegations concerning the remaining children were dismissed. The court then ordered that the four children be placed with the mother and that the father to have no contact. The father appealed.
The COA reversed and remanded based on the following errors: 1) The presence of the mother and maternal grandparents during the questioning of M.T. constituted reversible error, since the court made no finding pursuant to KRS 421.350 that their presence during M.T.’s testimony would benefit her welfare and well-being; 2) the trial court’s failure to conduct a hearing to determine whether there was a compelling need to interview the child in the absence of the father’s presence constituted reversible error; and 3) the trial court abused its discretion when it refused to permit the father to question the mother concerning her affair with a pastor who had been previously removed from a church because of allegations of sexual abuse.
The father raised other errors that the COA found unconvincing. Of note is the father’s allegation that he received ineffective assistance of counsel. While the COA ultimately rejected his claim, it set out the standard of review for such claims in dependency proceedings. “We hold that if counsel’s errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective.” (p. 10). The Court warned that the burden is very high and advised that such claims are properly raised on direct appeal, not in a collateral proceeding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Coffman v. Rankin, Ky Child Custody Modification, Standard To Be Applied; Jurisdiction

Coffman v. Rankin, --S.W.3d-- (Ky. 2008), 2007-SC-000348-DGE

The parties divorced in 2001 and were granted joint custody of their two minor children. The mother was named primary residential custodian. In 2004, the father filed a motion to modify the custody decree due to his concerns regarding the mother’s intention to move with the children and her engagement to an individual with past mental and addiction problems. During the pendency of the action, the mother was granted permission to relocate from Hardin County to Jefferson County with the children and her, now, new husband. An evidentiary hearing was held in 2006 and the Family Court named the father the primary residential custodian based on the best interests of the child standard. After the mother’s motion to alter, amend, or vacate was overruled, she appealed. The COA held that the Family Court abused its discretion and proceeded without subject matter jurisdiction, and therefore reversed the Family Court’s ruling.
The SC granted discretionary review. The SC found that the Family Court did have subject matter jurisdiction, since the Family Court determined that the moving papers were sufficient. It also found that the Family Court did not abuse its discretion, as the Family Court issued a thorough findings of fact and conclusions of law in excess of 16 pages.

Dissenting Opinion: It was an abuse of discretion in the trial court’s finding that there was substantial evidence to justify a change of custody. The evidence showed that the children are doing well with their mother. The majority of the fact finding concerned the new husband’s past instability. However, there was no evidence that the new husband had suffered any problems during his relationship with the mother or in the last five years. The trial court based its findings on speculation of what might occur in the future. Also, KRS 403.270(3) was completely ignored, as there was no evidence that the mother’s new relationship has affected her relationship with the children. More proof was needed to justify uprooting the children from their mother’s care.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

No KY COA Family Law Opinions To Be Published Last Week

One To Be Published Ky COA Family Law Opinion June 27, 2008

Z.T. v. M.T., et al, re rights of a parent in dependency action when child is questioned by the court and ineffective assistance of counsel. Digest to be posted soon.