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Domestic Violence Protection for Pets

Maine has new pet protection provisions in its domestic violence statutes. I know of no reason in KY why a court could not protect animals as part of the entry of a domestic violence order in the absence of a specific statute. The comments are passionate to the Press Herald online report of the new law. http://pressherald.mainetoday.com/news/statehouse/060412pets.shtml?com_f...

Innocent Spouse Tax Relief

The Family Law Taxation Blog has a recent posting about innocent spouse tax relief: http://www.familylawtaxation.com. However, even if the IRS absolves a sopuse from tax liability, in a KY divorce, the trial court can assess some of the burden of the tax to the innocent spouse.
Dobson v. Dobson, 159 SW3d 335 (Ky.App., 2004)
Spouse granted innocent spouse relief by the IRS is
not entitled to res judicata and trial court assignment
of tax deficiency 40% to innocent spouse was upheld.
Tax audit had uncovered a tax deficiency, but trial court

New KY Family Law Published Cases

As promised, here's the complete list and summary of the latest Kentucky cases that are final and now published. I have included just a few important non-final cases, but the status is indicated. Retired Chief Family Court Judge Richard A. Revell summarized half the cases in connection with our Fifteenth Annual Domestic Relations Update at the Louisville Bar Association yesterday. The seminar was well attended and the discussion lively. I will try soon to post the cases by category in a sidebar for easier access and frequent additions.

I. Child Custody and Visitation

Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.

Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he now resided. She remained in Tennessee.

On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff's motion to stay due to her non-appearance.

On January 17, 1997, the Tennessee court dismissed Mrs. Goff's action on the grounds there was an earlier pending action in Kentucky. The parties' child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on
March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.

In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff's visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally; and Kentucky does not have jurisdiction to determine such issue now, as the child has never resided in Kentucky.

The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and does not now have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.

The Court of Appeals overruled as to the first issue and affirmed as to the second issue. The Kentucky Supreme Court then granted Discretionary Review.

Held: Under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (was only 90 days old), and Tennessee declined jurisdiction.

The second issue is whether Kentucky has continuing jurisdiction to modify a custody decree, having acted originally. The Court holds Kentucky did not, as the child has never been in Kentucky. The Court of Appeals affirms on this issue.

Discretionary Review is sought and granted. The Supreme Court of Kentucky affirms the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky does not have jurisdiction to modify custody, as the child has never resided in Kentucky, and now more than 6 months have gone by, thus, Kentucky has lost jurisdiction.


Personal Identifiers to Be Private

Finally we have a law sealing social security numbers, date of birth, name of minor child and financial account numbers in domestic relations court files.

Alimony Recapture

When maintenance is front-end-loaded, the payor may be required to recapture in the third year excess alimony. Two calculations are necessary.The first compares the second year payments to the third year payments. If the amount paid in year three plus $15,000 is less than paid in the second year, the excess will be recaptured. The second computation compares the first year payments to the adjusted average of the second and third year payments.  If this average plus $15,000 is less than the payments in the first year, the excess is recaptured.

Paternity Fraud

An April 10, 2006 National Law Journal article on paternity fraud has been reprinted at www.law.com. This is the flip side of the dual paternity issue where non-biological fathers have been required to pay child support. It is important to distinguish the rights/duties of husbands who are non-bio dads who want to raise and support children born during a marriage. The Uniform Parentage Act (not adopted in KY) was well studied, but there may be some glitches.

Dual Paternity

Utah has decided an important dual paternity case, link below. The law in Kentucky is unsettled where a husband/non-biological father wants to continue a relationship with and support of a child born during the marriage. Although a case is pending in the Kentucky Court of Appeals, until a KY case is published the Utah decision lends support to the argument that unnecessary attacks on paternity should be discouraged.

http://www.utcourts.gov/opinions/appopin/pearson033006.pdf

Published Cases

Michael Stevens'  KentuckyLawBlog, KyCases, and LouisvilleLawWire have been of enormous help to the bar, providing a much needed  (and free!) service of publicizing appellate opinions. We all owe him a big thanks. This blog will not duplicate his efforts. We are working on a grouping of published family law cases which we will keep updated as the opinions become final. For example, the Kentucky Court of Appeals has rendered two important family law opinions within the year, neither of which are yet final.

Govenor Vetoes Change Relating to Child Support for Disabled Adult Children

After overwhelming passage in the house and senate, Gov. Fletcher vetoed today HB 204 which would  have provided that child support of a child found by the court to be disabled does not terminate at age 19 until the court determines otherwise.This would not have been much change in the law. However,  an amendment prohibited the continuation of child support beyond the age of 25.

Reporting of Certain Income to Child Support Authorities

HB 155 was passed and signed by Gov. Fletcher March 18, 2006. It requires employers of more than 20 persons to notify the Cabinet for Families and Children 45 days before a lump sum payment of $150 or more (or as soon as the decision to make such payment, if fewer than 45 days) is made and to hold the payment for 30 days after the date it would otherwise be paid. Upon motion, the court may direct that all or a specified part be paid to the Division of Child Support. Presumably the section applies only to employees who are subject to a wage assignment order for child support.

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