Kentucky Court Report - SCOKY & COAKY

Father required to pay child's funeral expenses: JEWELL V. JEWELL (COA 5/22/2008)

JEWELL V. JEWELL
FAMILY LAW:  Funeral Expenses For Child, Doctrine Of Necessaries
2007-CA-000420
PUBLISHED: REVERSING AND REMANDING
PANEL: LAMBERT PRESIDING; MOORE, WINE CONCUR
COUNTY: HARDIN
DATE RENDERED: 5/22/2008

Mother appealed from a judgment which found that the father was not liable for any portion of their son’s funeral expenses. Parties divorced in 1990 and the mother was granted sole custody of the parties’ only child. Their son was diagnosed with cancer in 2005 and died in 2006. The total funeral costs were $8,538.93. Upon their son’s death, the father received $10,000 in proceeds from a death benefit policy. Trial court found that the father had no obligation to pay any portion of the funeral expenses since the mother had sole custody. COA reversed based on KRS 406.011 and the doctrine of necessaries. The Court likened the non-religion-specific funeral expenses to costs related to pregnancy and child birth, which the father is required to contribute to under KRS 406.011. COA also cited to KRS 403.211, because it viewed the action as a proceeding to modify or interpret the support order. COA found it unjust for the father to collect $10,000 on a death benefits policy, but not require the father to pay half of the child’s funeral expenses.
REVERSED.

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

Family court award of permanent custody reversed for failure to have evidentiary hearing: BEARDEN V. MAULDIN (COA 5/22/2008)

BEARDEN V. MAULDIN
FAMILY LAW:  Permanent custody and grandparents required evidentiary hearing so mother could produce evidence
2007-CA-001888
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: LAMBERT PRESIDING; MOORE,BUCKINGHAM CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 5/22/2008

Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation.

FACTS:
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober.

TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents.

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed.

Analysis:
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom.

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation.

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation.

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

Burdens required for terminating parental rights include child's injury with parent: C.(M.E.) v. CABINET FOR HEALTH AND FAMILY SERVICES (COA 5/16/2008)

C.(M.E.)  v. CABINET FOR HEALTH AND FAMILY SERVICES
FAMILY LAW:  Termination of parental rights and proving injury with the parent
2007-CA-001904
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; NICKELL, TAYLOR CONCUR
WARREN COUNTY
DATE RENDERED: 5/16/2008

Mother appealed judgment terminating her parental rights to two children. KRS 625.090 provides that parental rights may be involuntarily terminated if the court finds from the pleadings and clear and convincing evidence that the child has been adjudged to be an abused and neglected child, as defined under KRS 600.020(1), and that the termination would be in the best interests of the child. The court must also find by clear and convincing evidence one of the grounds under KRS 625.090(2). COA found that the Cabinet did not meet its burden. First, the Cabinet did not present substantial evidence under KRS 625.090(1). There was no evidence that the children suffered any direct, emotional or physical injury with the mother. Second, the Cabinet failed to provide reasonable services to reunite the family. Third, there was no substantial evidence to support a finding of no reasonable expectation of improvement in the mother's condition. Finally, the Cabinet failed to prove that the mother is incapable of rendering care in the future. Due to the lack of substantial evidence to support the trial court's termination judgment, the COA REVERSED AND REMANDED.

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

District court and family court jurisdictional interplay addressed with no exclusivity: GOMEZ V. GOMEZ (COA 5/9/2008)

GOMEZ V. GOMEZ
FAMILY LAW:  District court and family court jurisdiction not mutually exclusive regarding domestic violence orders
2007-CA-001919
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; NICKELL, KNOPF CONCUR
BULLITT COUNTY
DATE RENDERED: 5/9/2008

Appellee filed a domestic violence petition in district court requesting an emergency protective order against the Appellant. The district court did not issue an emergency protective order, but did issue a summons and set the matter for a hearing. After the family court held a full evidentiary hearing, it issued a domestic violence order. Appellant appealed the order alleging that 1) since the district court failed to issue an emergency protective order, the family court lacked jurisdiction to either hold a hearing or enter a domestic violence order and 2) insufficiency of the evidence. COA found that the family court did have proper jurisdiction. Family courts are the primary forum for matters concerning domestic violence and abuse, although the district courts have concurrent jurisdiction to enter emergency protective orders under KRS 403.725. The Court found no statutory language to support Appellant's position that district courts retain exclusive jurisdiction unless an emergency protective order is issued. Of special significance in the instant case was the fact that the parties also had a pending divorce action, which gave the family court jurisdiction under KRS 403.725(4) as well. COA also found that the family court's issuance of the domestic violence order was supported by the evidence and was not clearly erroneous.
AFFIRMED.

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

No requirement that temporary maintenance be paid from non-marital property: HORVATH V. HORVATH (SC 4/24/2008)

HORVATH V.  HORVATH
FAMILY LAW:  Temporary maintenance arrearages
2006-SC-000837-DG.pdf
PUBLISHED:  REVERSING
OPINION BY SCOTT
KENTON COUNTY
DATE RENDERED: 4/24/2008

SC granted discretionary review on the issue of whether monthly payments by Husband to Wife satisfied his temporary maintenance obligation or represented a division of marital property, thus resulting in an arrearage of temporary maintenance payments by Husband.

Facts

While the parties' dissolution action was pending, they orally agreed that Husband would pay Wife "temporary maintenance" of $1,700 per month. Husband subsequently sold his shares in his business to his partners, for which he was to receive $30,000 in twelve quarterly payments of $2,500 and a consulting fee in the amount of $9,375 per month for three years. When the monthly consulting payments began, Husband increased his payments to Wife up to a monthly amount equal to about half the monthly consulting fee. The trial court subsequently ordered Husband to pay $1,700 per month temporary maintenance as per the parties' previous agreement. Husband nonetheless continued paying Wife the greater amount, equal to about half of the monthly consulting fee.

TC characterized the sales price as well as the consulting fee for Husband's business interest as a marital asset and treated the increased payments to Wife as a division of marital property, rather than maintenance, and found that Husband owed $1,700 per month in maintenance arrears from the date of the temporary maintenance order to the date of final judgment. CA affirmed.

Analysis

Husband argued that his monthly payments to Wife satisfied his temporary maintenance obligation. SC found that the payments were "undoubtedly" for temporary maintenance as there existed in the record no documentation of any agreement that the increased payments were the result of an agreed division of marital assets, nor did anyone argue that they were gifts. SC found that the fact that the payments were funded by marital property is immaterial. Kentucky law, with few exceptions, presumes that all property acquired subsequent to the marriage and before legal separation is marital property. KRS 403.190(2)-(3). Thus, there is no statutory requirement that temporary maintenance be paid out of non-marital property, so long as each party receives his or her full share of marital property on entry of decree. TC awarded Wife half the value of the consulting fee in its equalization of the marital estate. Thus, of the increased payments Husband made to Wife, Husband was paying Wife $1,700 in temporary maintenance and the remainder as payment towards her half of the consulting fees. Consequently, SC ordered that Husband must now pay Wife her full share of this marital asset, less the amounts she has already received over and above the $1,700 per month she received as temporary maintenance. CA reversed and remanded to TC.

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

Family court does not have Subject matter jurisdiction to determine biological paternity of child born during marriage: J.N.R. and J.S.R. V. HON. JOSEPH O'REILLY (SC 4/24/2008)

J.N.R.  AND J.S.R   v. HON. JOSEPH O'REILLY
FAMILY LAW:  Subject matter jurisdiction to determine biological paternity of child born during marriage
2007-SC-000175-MR.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY MINTON; CUNNINGHAM CONCURS W/SEP. OP AND SCOTT JOINS; SCOTT CONCURS IN RESULT ONLY WITH CUNNINGHAM JOINING W/SEP OP; ABRAMSON DISSENT W/SEP OP IN WHICH SCHODER JOINS; NOBLE DISSENT BY SEP OP.
JEFFERSON COUNTY
DATE RENDERED: 4/24/2008

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JSR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child's birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky's Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a "stranger to the marriage" to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple's right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes "marital relations," the sexual aspects of marriage with the "marital relationship," the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the "marital relationship between the husband and wife" referenced in KRS 406.011 can certainly be said to "cease" when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous "marital relationship" ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother's cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

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

Non-biological "parent" of child in same-sex relationship found not be de facto custodian and biological parent did not waive her superiour right of custody and no claim of unfitness results in no standing to assert custody: PICKLESIMER v. MULLINS

PICKLESIMER V. MULLINS
CIVIL PROCEDURE:  Jurisdiction, venue, entry of apperance in custody issue
FAMILY LAW:  Non-biological "parent" of child in same-sex relationship found not be de facto custodian and biological parent did not waive her superiour right of custody and no claim of unfitness results in no standing to assert custody
2007-CA-000086
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL:  WINE PRESIDING; CAPERTON, KELLER CONCUR
GARRARD COUNTY
DATE RENDERED: 3/28/2008

Affirming in part, reversing in part and remanding Garrard Circuit Court

The facts of this dispiriting case will take some time to recite. Two women, Phyllis and Arminta, were, to quote the COAs, "engaged in a five-year lesbian relationship during which time they lived together." The women decided to "parent a child together," and they agreed Phyllis would be artificially inseminated by a donor the women selected from the internet. The CAs noted that the parties agreed they made the decision to conceive and raise the child together.  Phyllis subsequently gave birth to their son, Zachary.

The parties' relationship suffered when Phyllis suspected Arminta of having an affair, and they separated on and off between 2004 and 2005; the relationship came to an end in February, 2005. During the time they were together, the women lived in the same home, and while the residence, vehicles and a checking account were in Phyllis' name, both women agreed that Arminta participated in supporting Zachary emotionally and financially. Zachary had some health problems, and it was not uncommon for Arminta to awaken at night and care for him when his heart monitor went off. Meanwhile, Phyllis cared for him while Arminta was at work. Zachary called Phyllis "mommy" and Arminta "momma." Arminta claimed that from April 2006 to September 2006 the parties lived apart but continued to exercise timesharing on an equal basis with Zachary.

While the parties were living together, Arminta was concerned about hospitals, schools, etc. not viewing her as Zachary's legal parent without some court determination declaring her as such, and both women agreed some legal action was necessary in case Phyllis was unable to make decisions for Zachary due to her death. The women lived in Lincoln County but petitioned the Garrard Circuit Court to recognize Arminta as a de facto custodian in an effort to keep the proceedings from becoming public in their own county (and in part to avoid review by Lincoln's family court judge). While Arminta's attorney only represented her, both parties went to the attorney's office on January 20, 2006. Arminta signed a verified petition alleging she was the Zachary's de facto custodian, and the petition, as well as an Agreed Judgment of Custody and order, read that Arminta was the primary financial provider and primary caregiver of Zachary for a period of time of not less than six months from his date of birth until January 20, 2006. Phyllis filed an entry of appearance and signed the agreed order. Without conducting a hearing or taking any evidence, the trial court signed the agreed judgment and entered it on February 3, 2006. No summons was issued by the clerk of the court at the time the documents were filed, but neither party challenged the lack of notice.

In September of 2006, Phyllis stopped Arminta's contact with Zachary, alleging that Arminta had violated an oral agreement that they were never to leave Zachary with anyone other than a family member (Phyllis said Arminta left him with a man who allegedly assaulted Arminta's new partner). Arminta then filed a motion requesting she be granted joint care, custody and control of Zachary and declaring her as primary residential custodian. Phyllis retained counsel and filed a motion to dismiss, arguing Garrard Circuit Court lacked jurisdiction because no summons was ever filed; the entry of appearance was invalid because it was signed prior to filing the petition for custody; and venue was improper. Alternatively, Phyllis argued to set aside the agreed judgment under CR 60.02 on the basis of mistake. Prior to the hearing on these issues, Arminta filed a motion to grant her sole custody of Zachary because Phyllis unilaterally withheld him from her and acted in a way detrimental to his best interests.

The trial court referred the case to a DRC who held a hearing and recommended: (1) the trial court deny Phyllis' motion to set aside the judgment on the grounds of lack of summons, insufficiency of entry of appearance, lack of venue and fraud as to the relationship between her and Arminta; (2) the trial court grant the motiont to set aside the judgment as void on the grounds of failure of Arminta to qualify as de facto custodian; (3) to find that Phyllis waived her superior right to custody in favor of Arminta as joint custodian; (4) the parties be awarded joint custody of Zachary; (5) Phyllis be designated primary residential custodian; (6) Arminta be granted parenting time pursuant to a schedule used by the parties in the summer of 2006; (7) the Garrard Circuit Court visitation guidelines govern any parenting time not agreed upon; and (8) neither party be required to pay child support. Both parties filed exceptions, and the trial court denied same, adopting all the recommendations on December 1, 2006.

On December 8, 2006, Arminta filed an emergency protective order on behalf of herself and Zachary in Lincoln County; relying on the "child in common" standard for an EPO, she alleged an altercation arose between herself and Phyllis in a custody exchange. In an ex parte order the Lincoln Family Court granted Arminta's request for sole custody of Zachary, and the case was transferred to Garrard for a hearing on December 21; Phyllis had no contact with her son in the duration. The trial court heard the case on the 21st and restored Phyllis' timesharing rights with Zachary that day. Believe it or not, some other procedural matters also occurred which shall be dispensed with, as they have little bearing on the issues of this case. This appeal and cross-appeal followed.

The CAs review child custody matters on a clearly erroneous standard. Phyllis first argued that Garrard CC lacked jurisdiction and venue to issue Zachary's custody orders, specifically because Arminta failed to have a summons issued upon the filing of the petition. The CA disagreed, holding that Phyllis signed an entry of appearance simultaneously with the petition and conceded to having full knowledge of the proceedings and understanding the contents of the documents she was signing and the fact that they would be submitted to a court. Further, once they were submitted, Phyllis never filed a notice of appeal, asked for a review of the petition or questioned its validity. She also acted as though the judgment were valid by providing Arminta parenting time pursuant to the petition. The result: the purpose of the summons was fulfilled by the entry of her appearance, and she was definitely on notice of the action.

The CA rejected Phyllis' argument that the entry of appearance was invalid because it predated the filing of the petition, holding that "it is elementary law that a party who enters his appearance to any suit by filing an answer or otherwise responding waives the service of a summons." Brock v. Saylor, 300 Ky. 471, 189 S.W.2d 688, 690 (1945).

Phyllis' venue argument was also dropkicked...the CAs noted that while it is the usual practice to make custody decisions in the county of the child's usual residence, KRS 452.050 and the notion of waiver operated to allow the case to be heard in Garrard CC.

That pretty much did it for Phyllis' arguments...the CAs then turned to Arminta, who first argued that the agreed judgment was valid for all legal purposes because Phyllis signed it knowingly and voluntarily. She also contended the trial court erred in finding a hearing was necessary because the parties had stipulated facts prior to the entry of the order, and she argued the trial court abused its discretion in setting aside the agreed judgment of custody entered 2/3/06.

The CAs agreed that Arminta did not qualify as a de facto custodian, looking to the definition of same in KRS 403.270, which states that a de facto custodian must be shown by clear and convincing evidence to have been the child's primary caregiver and financial supporter for six months or more if under three years of age. The trial court vacated the judgment of custody pursuant to CR 60.02 on the grounds of "perjury or falsified evidence." Phyllis established that Arminta was NOT in such a position, that she only signed the petition to give Arminta legal authority to make health-related decisions in the event of Phyllis' death, and that she took issue with the language of the petition, but that she thought it was the only way to ensure Arminta would be able to care for Zachary in her absence. Both parties' testimony established, though, that Arminta was never the primary caregiver or financial supporter for Zachary, but instead both parties did these things jointly. Therefore, Arminta did not satisfy her burden of showing de facto custodianship, and while her argument that agreed orders are routinely submitted to the courts was true, custody matters are different because of the best interests of the child standard.

The CAs then pass a little judgment on the "duplicitous and fraudulent" conduct of the parties, "regardless of its 'noble' intent." They held that the parties presented the documents to the court in an effort to avoid a full-blown hearing, and that such conduct was not only perjured or falsified evidence under CR 60.02(c), but also constituted a fraud on the proceedings under CR 60.02(d). To be sure, the CAs noted that perpetrating a fraud on the court does not necessarily have to arise from a wicked motive or deliberate deceit, but leading astray, throwing off guard or lulling to security and inaction falls under this mantle as well. The CAs, convinced the parties perpetrated such fraud, affirmed the trial court's decision to set aside the agreed judgment.

Then the CAs noted that setting aside this judgment effectively denied Arminta, Zachary's "momma" who jointly cared for him financially and emotionally all of his life, standing to seek custody. The trial court had decided that result was unjust and unreasonable and remedied the situation by holding Phyllis waived her superior right of custody by acknowledging Arminta was Zachary's parent and allowing her extensive visation and timesharing with him. Then after determining it was in the best interests of Zachary, the trial court awarded joint custody to Arminta. The CAs examined the notion of waiving a superior right to custody and considered some factors to help determine whether a parent has done so listed in Vinson v. Sorrell, 136 S.W.3d 465 (Ky., 2004), among which are: the length of time the child has been away from the parent; circumstances of separation; age of the child when care was assumed by non-parent; time elapsed before the parent sought to claim the child; and frequency and nature of contact, if any, betwen parent and child during non-parent's custody. The CAs held that there was no basis for the trial court to find Phyllis waived her superior right to custody, noting that the child had only been out of her custody two weeks of his life. They also found Phyllis never "waived" custody as that legal term is understood.

So, Zachary's "momma," who supported him financially and emotionally throughout his young life, was found not to be a de facto custodian, and as she could not show Phyllis was unfit or had waived her superior right to custody, the CAs held she had no standing to assert custody.

Cherry Henault Guarnieri

State court has jurisdiction to modify divorce decree to resolve disagreements in federal retirement benefits with FAA: DOERR V. DOERR (COA 3/21/2008)

DOERR v DOERR
FAMILY LAW: Relief From Agreement, Jurisdiction To Modify
2006-CA-000739
PUBLISHED: REVERSING AND REMANDING
PANEL: ACREE PRESIDING; COMBS, TAYLOR CONCUR
FROM JEFFERSON COUNTY
DATE RENDERED: 3/21/2008

The parties were divorced in 1990 and the divorce decree contained a provision regarding the husband’s retirement benefits. In 2005, when the husband retired from the Louisville AFSS Department of Transportation FAA, he noticed that his ex-wife was receiving more than her intended share of the benefits. In order to correct the error, since the settlement agreement failed to adequately address the issue, he filed a motion with the TC to modify the decree. The TC denied the motion finding that it lacked appropriate jurisdiction and recommended that the husband seek relief in federal court. COA found that the TC does have proper jurisdiction under 5 CFR § 838.101 (a), which specifically states that state courts have the authority to resolve disagreements concerning validity or provisions of any court order. Reversed and remanded.

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

New hearing not required following delinquent entry of dissolution decree: THOMAS V. THOMAS (SC 3/20/2008)

THOMAS V. THOMAS
CRIMINAL:  Delinquent entry of decree; new hearing not required
2006-SC-000526-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY NOBLE
LAMBERT CONCURS IN RESULT ONLY; MINTON NOT SITTING
DATE RENDERED: 3/20/2008

Ex-Wife raised 2 claims of error to SC: (1) that CA erred in affirming TC’s decision not to grant a hearing on evidence arising subsequent to DRC’s oral ruling ; and (2) that CA improperly applied the facts and holdings of Dubick v. Dubick, 653 S.W.2d 652 (Ky.App. 1983) to the case.

DRC took the parties’ dissolution action under consideration for final hearing on April 27, 2000. At the hearing's close, DRC issued oral ruling from the bench and directed Ex-Wife's attorney to draft an Order. That Order was never drafted by Ex-Wife's attorney and neither party brought this fact to TC’s attention. No action was taken to finalize the divorce until, four years later, Ex-Wife’s new attorney entered an appearance and requested a new hearing due to the delay and the parties’ changed financial circumstances. DRC recommended that no further hearings be held, and TC affirmed this recommendation. After hearing Exceptions filed by Ex-Wife, TC rendered a decision stating that either party could have requested written findings at an earlier date, but failed to do so.

SC noted that KRS 454.350 mandates a specific duty that DRC shall submit findings and recommendations necessary for an order within 90 days of the hearing. Here, SC found that DRC delivered his ruling orally, but did not follow through to see that it was reduced to writing, the form in which it had to be in order to send it to TC for final adjudication. Ex-Wife argued that the mandatory language of the statute thus voided the oral ruling, and another hearing should have been held. Ex-Wife would then be able to introduce new equitable issues as to the circumstances of the parties, which could result in a different division of the marital property. However, in Dubick this SC stated that even if there is a violation of KRS 454.350, any resulting late judgment or report is not void because of tardiness. SC found that the main difference between this case and Dubick is the amount of time that lapsed between the decision and the entry of the order and that the four years that passed in this case is a substantially longer period of time. Nonetheless, SC held that if the KY legislature had intended the judgment to be void when rendered more than ninety days after the hearing of the cause, it would be contained in the statute. Ex-Wife suffered no actual damage as she will receive whatever assets under DRC's findings she would have received four years ago, and she knew what those assets and debts would be due to the oral findings given at the original hearing in 2000. SC noted that allowing a new hearing in this case could encourage parties to purposely delay submitting orders, hoping they could force another hearing (and possibly a better result) at a later time.

SC noted that an attorney who is instructed by TC to draft and submit an order, and who fails to do so, may be charged with violating SCR 3 .130-1.3, requiring the attorney’s due diligence. Finally, SC stated that Ex-Wife also had another remedy for the delay that she did not uses—seeking a mandate of TC or else ask that the order of reference be set aside. TC’s order affirmed.

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

JUVENILES: Reinstating dependent's commitment to continue education: COM. V. M.(C.) (COA 3/14/2008)

COMMONWEALTH V. M.(C.)
JUVENILES:  Reinstating dependent's commitment to continue education
2007-CA-001468
PUBLISHED: AFFIRMING
PANEL: CAPERTON PRESIDING; LAMBERT, THOMPSON CONCUR
COUNTY: KENTON
DATE RENDERED: 3/14/2008

COA held the trial court had authority to reinstate a dependent's commitment to Cabinet for Health and Family Services for purpose of facilitating  the dependent's college education until the age of 21 in spite of the fact that the Cabinet had made an earlier decision to suspend such commitment after dependent had previously decided to quit college; dependent sought reinstatement after changing her mind about school and wishing to go to college. See, KRS 620.140.