Today, that world is gone.

Communication can now happen across dozens of platforms whether its basic text messages, direct messages, disappearing chats, comments on social media posts, shared videos, gaming chats, and more. What feels casual and fleeting in the moment can become a permanent and powerful piece of evidence in a family law case – if you know where to look.

For many people, especially with the younger generations, texting is no longer the primary way to communicate. There are so many different apps from Instagram, TikTok, Snapchat, Facebook, WhatsApp, Discord, etc. that are used for communication. Each app feels different. Some promise disappearing messages while others are just quick comments, a reaction, or a short video post.

But regardless of the medium, when it comes to a family law case, there is no such thing as “just” a message.

In Family Law, Everything is Potential Evidence

In proceedings involving divorce, custody, support, etc., communications between parties often become central to the case. These communications can be key in determining issues like parental fitness, substance abuse, violations of Court orders, and anything in between.

Here are some ways social media evidence has been introduced in family court cases:

• A heated comment left on an Instagram post;

• A private message sent through Facebook Messenger;

• An inappropriate TikTok video recorded during parenting time;

• An emoji reaction on a Facebook post;

• The audio in the background of a video;

• Geolocation tags; and,

• Subpoenaed “disappearing” Snapchat messages.

Many people assume that if a message disappears either from the feed or on platforms like Snapchat, that it is gone forever. That is often not true. Recipients can take screenshots. Metadata may exist. Cloud backups may store content. Social Media companies may be subpoenaed. And, once litigation begins, parties have a legal duty to preserve relevant communications – across all platforms.

The More Apps You Use, the More Risk You Create

The expansion of communication platforms has dramatically increased the volume of potential evidence to be used in family court proceedings. Every additional platform is another source of discoverable material. Even casual or joking remarks can be taken out of context and presented in court.

In family law, the context does matter, but so does documentation. Judges see what is preserved and produced, not what you meant in the moment. This is especially true because the tone of a message is lost through text. And sometimes, it does not matter what you meant in the moment if the other party interprets the message in a different, more negative, manner.

A Word to Clients: Assume it Could be Read in Court

If you are involved in a custody or divorce matter, a good rule of thumb is simple:

If you would not want a judge to read it or watch it, don’t post it, send it, or record it.

Before you post a rant about your co-parent or send an angry message, think about the consequences. Modern communication may feel private. In litigation, it rarely is.

A Word to Attorneys: Look Beyond Text Messages

For practitioners of family law, it is no longer sufficient to request “text messages” in discovery and stop there. There is a whole world of social media out there where people do not consider their communications to be “texting.”

If you are not asking about these platforms from your clients or from discovery requests to the opposing party, you may be missing critical evidence that can make or break your case. You might even run into other legal issues if the lack of inclusion of these social media sites leads to your client failing to preserve evidence.

Intake procedures and discovery requests should reflect the reality of how people actually communicate in 2026, not how they communicated in 2006.

Conclusion

Technology evolves faster than the law and courts are constantly having to adapt to include new forms of digital evidence. The shift from simple texting to multi-platform communication has drastically expanded what may become relevant in family law disputes.

Whether you are a client or an attorney, the takeaway is the same:

Every app is a potential exhibit.

Being mindful of that reality can prevent avoidable damage and ensure that your case is built on a full and accurate understanding of the modern digital landscape.

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Calloway Circuit Court

http://opinions.kycourts.net/sc/2024-SC-0188-DGE.pdf

KENTUCKY SUPREME COURT ADDRESSES EVIDENCE OF RISK OF HARM AFTER CHILD EXPOSED TO ILLICIT SUBSTANCES AND DUI

A DNA petition filed against Father asserted that he neglected Child (6 y/o) by exposing him to a risk of physical or emotional injury, after a school resource officer (SRO) smelled marijuana in Father’s car and on Child during school drop off. Mother, Father, and Child subsequently submitted to drug screens. Father tested positive for oxycodone (for which he had a prescription), L-methamphetamine (trace amounts indicated exposure but not ingestion) and THC (at levels indicating exposure and ingestion). Child tested positive for THC (exposure and ingestion). After a lengthy adjudication, the Court found Father had neglected Child. Father appealed. The Court of Appeals reversed the Family Court, holding that its decision was clearly erroneous because the Cabinet did not present evidence that Child’s exposure to marijuana resulted in a risk of physical or emotional injury.

The Supreme Court reversed the Court of Appeals and reinstated the order of the Family Court. The Court focused its analysis on the Cabinet’s argument that Father subjected Child to a “risk of harm” when he exposed Child to – and drove Child to school while under the influence of – marijuana. The Court addressed Father’s arguments: 1) It was necessary for the Cabinet to present an expert witness testimony to prove Child’s exposure created a risk of impairment to his physical condition; and 2) The Family Court lacked substantial evidence to find Father drove with Child while under the influence because the SRO had not definitively established that Father was smoking marijuana during school drop off.

Ultimately, the Court held that the Family Court’s findings under KRS 600.020(1)(a)(2) were supported by substantial evidence and thus it was unnecessary to discuss the Family Court’s findings under the other subsections, since a finding of neglect requires only one of the many grounds enumerated in KRS 600.020(1)(a). Here, the Family Court made a finding under KRS 600.020(1)(a)(2), which permits a finding of neglect where there has been only a risk of physical or emotional injury. The Court held that a trial court must find both that a parent suffers from substance abuse and that the substance abuse resulted in an actual, reasonable potential for harm before it can make a finding under 600.020(1)(a)(2).

The Court opined that the Family Court was entitled to draw reasonable inferences from the evidence. Thus, while the SRO did not definitively establish that Father was smoking marijuana in the car at school drop off, there was sufficient evidence to reach that conclusion, and the social worker’s testimony, and Father and Child’s drug screens, supported that inference. The Court held that the physical injury to Child arose in combination of Child’s exposure to illicit substances and Father’s operation of a vehicle with Child while under the influence.

Carter Anderson

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Jessica Allgeier v. Jeffrey Wagner, No. 2024-CA-0496-MR

Jefferson Circuit Court http://opinions.kycourts.net/COA/2024-CA-000496.PDF

COURT OF APPEALS DETERMINES APPROPRIATE VENUE FOR WIFE’S CLAIM RELATED TO HUSBAND’S BUSINESS

Wife and Husband filed for divorce in Jefferson Family Court in 2013, and a decree was subsequently entered. In 2024, Wife filed a complaint in Jefferson Circuit Court containing several causes of action regarding the mismanagement and misappropriation of funds received by Husband through his car wash business, and one cause of action seeking civil damages for Husband’s interference of Wife’s custody of their two children. Husband filed a motion to dismiss, wherein he argued the Circuit Court lacked jurisdiction over Wife’s claims because they arose out of the former marriage and were the subject(s) of ongoing litigation in Jefferson Family Court. The Circuit Court issued an order concluding that, because these issued stemmed from a divorce that had been pending in Jefferson Family Court for over eleven years, it did lack subject-matter jurisdiction and dismissed the action.

Wife appealed, arguing that the Circuit Court had exclusive authority to adjudicate her claims, because she sought money damages based on Husband’s civil liability. The Court of Appeals ruled the Family Court was the appropriate forum for the resolution of Wife’s claims, but that the correct disposition of the matter was not dismissal but rather transfer of the matter to family court for further adjudication, be that dismissal or resolution of the issues on their merits.

In support of its order, the Court explained that it was unnecessary to decide whether the Circuit Court lacked subject-matter jurisdiction, because it was clear that the general jurisdiction of a family court as provided by Ky. Const. § 112(6) (one or more divisions of a Circuit Court may be designated as a Family Court division, which shall retain the general jurisdiction of the Circuit Court and have jurisdiction of other matters) extends beyond the specific areas of jurisdiction outlined in KRS 23A.100, which states that the Family Court division shall be the primary forum for cases in that section. While it acknowledged that the cited statutes were not intended to limit the jurisdiction of the Circuit Court, the Court felt that applying the statute the way it did ensured the purposes underlying the creation of the family courts – that domestic cases proceed there – were respected.

Carter Anderson

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Bracken Circuit Court

2024-SC-0137-DGE.pdf

KENTUCKY SUPREME COURT CONSIDERS WHETHER PERMANENT CUSTODY ORDER AMOUNTED TO CUSTODY DECREE

Child was born in 2016. In his first two years of life, he was removed from Mother and Father by the Cabinet and placed in the temporary custody of Father’s cousins (Cousins) three times through a dependency, neglect and abuse (DNA) case heard by the district court. The initial removal was from both parents. After the first removal, the child was only returned to – and subsequently removed from – Father’s custody. Upon the third removal, the district court entered a permanent custody order (PCO) granting sole custody of Child to Cousins.

In 2021, Mother filed a motion for sole custody, which the circuit court denied following a hearing, finding that Mother had waived her superior right to custody in being absent from Child’s life, and remaining with Cousins was in his best interest. The Court of Appeals reversed, and ordered the circuit court to award custody to Mother upon conclusion that the record did not support the finding of waiver. The Supreme Court granted discretionary review.

The Supreme Court denied Cousins’ argument that the PCO entered in the DNA case granted them equal standing as Mother in any subsequent custody dispute, and reiterated the holding of London v. Collins: a PCO under KRS 620.027 will generally be treated as a custody decree such that the modification standard under KRS 403.340 controls when a parent seeks to regain custody, but only if the PCO complies with the requirements of KRS 403.270. 242 S.W.3d 351 (Ky. App. 2007).

In this case, Cousins were never declared Child’s de facto custodians. Rather, their legal status stemmed from KRS 403.800(13)’s definition of a “person acting as a parent”. Importantly, the Court held in Mullins v. Picklesimer that a non-parent qualifying as a person acting as a parent has standing to seek custody under KRS 403.822. 317 S.W.3d 569 (Ky. 2010). But, a person acting as a parent does not receive equal standing to a parent in the way that a de facto custodian would. Thus, a court must first determine whether a parent is unfit or has waived their superior right, before it can determine custody in accordance with the child’s best interests. Moore v. Asente, 11 S.W.3d 336 (Ky. 2003).

In its PCO, the district court made no specific findings as to Mother’s unfitness, waiver of superior rights, or consent to permanent placement. Further, the PCO did not qualify as a custody decree under KRS 403. Thus, the Appellate Court properly determined Cousins were required to demonstrate waiver or unfitness to defeat Mother’s superior right to custody.

However, the Appellate Court was incorrect that the above conclusion entitled Mother to immediate custody. In custody matters, the Court held, the Appellate Court should focus both on

whether a trial court’s findings of fact are supported by substantial evidence and whether the findings of fact were sufficient under the applicable legal standard. In this case, the circuit court’s finding of waiver was insufficient as a matter of law because it did not address the voluntariness of Mother’s separation from Child. In addition, there were no findings at all related to Mother’s fitness because the trial court applied the incorrect standard. Without such findings, meaningful appellate review is impossible, thus requiring remand to the circuit court for additional proceedings.

Ultimately, the Court affirmed the Appellate Court’s determination that Cousins were required to demonstrate Mother’s unfitness or waiver because the PCO did not constitute a custody decree, reversed its holding that Mother was entitled to immediate custody, and remanded for further proceedings.

Carter Anderson

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Ashley Nicole Harney v. Stuart Austin Harney, No. 2022-CA-1202-MR

Jessamine County Family Court

http://opinions.kycourts.net/COA/2022-CA-001202.PDF

APPELLATE COURT CONSIDERS APPROPRIATE INTEREST AWARD ON CHILD SUPPORT ARREARS

In a contentious post-dissolution custody case, Father’s child support increased multiple times over a three-year period before he filed a motion to modify custody and timesharing, to reallocate the child tax exemption, and for reimbursement of childcare costs that he had paid to Mother, but that Mother had not actually incurred. The family court granted his motions and determined that no interest was to accrue on his arrears because no prior order included interest as part of the arrearage calculation.

Mother filed a motion to alter, amend, or vacate (AAV), arguing that Father should not be permitted to claim Child on his taxes because Father was still in arrears on his child support obligation and requesting the family court reevaluate its order on Father’s child support arrears. The family court denied Mother’s motion regarding the child tax exemption but granted it as to the accrual of interest on the arrearage, stating that Mother would be entitled to interest on each payment from the time it is past due until paid in full.

Father filed a motion to AAV as to the interest. Mother filed a motion to modify child support. A hearing was held after which the family court – relying on Gibson – granted Mother interest for Father’s unpaid child support from 2015 to 2018 but not for child support from 2018 to present. Mother appealed, arguing she should receive interest on all unpaid child support.

The Court of Appeals upheld the family court’s order regarding interest on the child support arrearage. It held that a family court may decide whether to impose post judgment interest on child support after considering whether the obligor met either of the Gibson factors during that time (i.e. whether there was an attempt by the obligor to provide any services to the children, and whether the obligor made any attempt to substantially comply with the child support order). From 2015 to 2018, Father met neither Gibson factor. Thus, awarding interest for that period was equitable. From 2018 forward, Father actively worked to pay down his arrearage. Thus, he met one of the Gibson factors and imposing interest for that period would not be equitable.

The Court also made findings on other issues raised by Mother in her appeal. First, it held that the family court erred by not awarding Mother interest on the attorney fee amount Father was ordered to pay per the parties’ 2015 Separation Agreement. The Court reversed and remanded this issue for the family court to calculate the interest owed on that amount, so that it could be awarded. Second, it upheld the family court’s order directing that Father receive a credit on his arrearage for his overpayment of childcare costs. The Court explained that childcare costs are addressed in KRS 403.211, which states that the amount allocated for the cost of childcare is in addition to the amount ordered under the child support guidelines. Thus, if the expense was not incurred, then the overpaying party is entitled to a reimbursement. Finally, the Court upheld the family court on its reallocation of the child tax credit. Father was permitted to claim the child as a dependent on his 2021 taxes because he was current on his child support obligation and his children’s medical expenses for that year and was therefore compliant with the language in the parties’ Separation Agreement.

Carter Anderson

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Blaine Van Gansbeke v. Bridget F. Van Gansbeke, No. 2023-CA-0942-MR

Jefferson Family Court

http://opinions.kycourts.net/COA/2023-CA-000942.PDF

APPELLATE COURT REVERSES JEFFERSON FAMILY COURT, EMPHASIZES RIGHT TO CROSS EXAMINE FOC SOURCES

In a contentious post-decree custody matter, the family court appointed a Friend of the Court (FOC) after Father moved to modify the existing custody and timesharing order. The FOC filed his report, in which he cited the children’s therapist (Therapist) as one of many collateral sources he interviewed during his investigation. The family court entered an order that the testimony of Therapist could not be compelled by any means as such testimony was against the best interest of the children. Father then moved to exclude the FOC’s report and testimony at the hearing because he did not have a meaningful opportunity to challenge the FOC’s sources. The family court denied Father’s motions and Father appealed.

The Court of Appeals found that in denying Father’s ability to compel the testimony of Therapist, the family court violated Father’s due process rights. The Court outlined the due process protections contained within KRS 403.300(3), which aim to provide both sufficient notice of the FOC report and its sources, and a meaningful opportunity to refute them. The Court found that the FOC report was rife with references to Therapist’s viewpoints which could only have been included as first or second level hearsay. Thus, prohibiting Father from exercising his statutory right to have Therapist substantiate what they told the FOC violated the due process necessary for Father to protect his right to parent his children. The Court vacated the order and remanded the matter for a new hearing.

Carter Anderson

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Pulaski Circuit Court

http://opinions.kycourts.net/sc/2023-SC-0043-DG.pdf

KENTUCKY SUPREME COURT ELIMINATES ATTORNEY FEE AWARDS UNDER CR 68 IN FAMILY LAW MATTERS

Father sought an award of attorney fees in a child support modification matter pursuant to CR 68(3). He argued that he was entitled to reimbursement of his attorney fees because Mother ran up his discovery costs after he offered her a settlement that would have provided her with a child support amount higher than what was ultimately awarded to her by the family court following an evidentiary hearing.

The family court denied Father’s motion on the basis that KRS 403.220 governs whether an award of attorney fees is appropriate. The Court of Appeals Affirmed. The Supreme Court accepted discretionary review before affirming the lower courts and eliminating the use of CR 68 in domestic proceedings.

The Court held that KRS Chapter 403 generally and KRS 403.220 specifically preempt CR 68 from application to family law matters. The Court explained that an award of fees under CR 68 is inconsistent with the resolution of family law matters, where the focus is less on winners and losers and more on equity and fairness. Specifically, the Court took issue with the lack of discretion family courts would have to award fees under CR 68, which mandates that an award be made under certain circumstances. Instead, the Court held that family courts may award fees under KRS 403.220 and CR 11, which give them wide latitude in awarding fees and discouraging conduct or tactics that waste the court’s and attorneys’ time.

Carter Anderson

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Lisa Bentley and Gerald Bentley v. Scarlett Etherton and Tasha Bentley, No. 2023-CA-0560-MR

Bullitt Circuit Court

http://opinions.kycourts.net/COA/2023-CA-000560.PDF

KENTUCKY COURT OF APPEALS AFFIRMS BULLITT FAMILY COURT ORDER DENYING GRANDPARENT MOTION TO MODIFY CUSTODY, VISITATION

After Mother killed Father in Henry County, Aunt initiated a DNA action in Bullitt County and was awarded temporary custody of Child. Paternal Grandparents – without knowledge of the Bullitt County DNA action – filed a visitation action in Henry County that named Mother and Aunt as respondents and would later be transferred from Henry to Bullitt County. Aunt sought to dismiss based on the DNA action.

Grandparents then attempted to intervene in the DNA action. At an adjudication in the DNA action, and without making a formal motion, Grandparents sought to intervene and obtain custody of Child. The family court did not rule on Grandparents’ motion to intervene, but did order a visitation schedule for Grandparents. Grandparents later filed a motion to intervene and for joint custody, which the family court never ruled on. The family court did issue an order denying their motions for joint custody. In another order, the family court ordered grandparent visitation and granted Grandparents access to Child’s medical and psychological records.

Aunt was later awarded permanent custody of Child in the DNA action after filing a motion and serving the same to all parties. Grandparents did not appear at that hearing to state any objection. For years after the permanent custody order was entered, the parties filed multiple motions and agreed orders regarding Grandparents’ visitation with Child. Eventually, on Grandparents’ motion for modification of custody and Aunt’s motion for Grandparents’ visitation to occur at her discretion only, the family court entered an order finding the current custody and visitation arrangement in Child’s best interest. Grandparents filed a motion to alter, amend or vacate, which the family court denied, after finding that the motion lacked a sufficient basis to modify under CR 59.05.

Grandparents appealed, arguing that: 1) the Family Court violated their due process rights when it adjudicated the DNA petition without notice to them and 2) the Family Court’s Friend of the Court (FOC) failed to comply with his statutory obligation to investigate the case.

The Court of Appeals found neither argument persuasive. While it was true that Grandparents were not officially permitted to intervene, the family court had proceeded in the DNA action as if it had granted intervention by ruling favorably on some of Grandparents’ motions and unfavorably on others. Timely notice of the adjudication hearing had been mailed to Grandparents’ counsel in the DNA matter and a hearing was later conducted on their motion to modify custody in the custody matter. Thus, Grandparents had been given multiple opportunities to be heard.

Second, Grandparents confused the court appointed FOC’s role – outlined by KRS 403.290-300 – with the duties of a fiscal court FOC outlined by KRS 403.090. The statutes governing the FOC in this context use permissive language, stating that an FOC “may” conduct an investigation. Whether the family court was satisfied with the FOC’s performance was within those discretionary bounds and a matter between the family court and the FOC. More importantly, Grandparents’ argument assigned no error to the family court relative to the FOC’s report. Because the FOC report was one part of a body of substantial evidence supporting the family court’s order, the Court of Appeals could not find that the family court had committed any error. Thus, the Court of Appeals found no error, and affirmed the family court.

Carter Anderson

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Mother and Father were never married but shared one (1) child in common. Pursuant to the Parties’ mediated Agreement (“the Agreement”), the Parties were to share joint custody of their minor child and jointly make all decisions related to their child’s education, medical, and religious upbringing. The Agreement also granted Mother final decision-making authority in the event the Parties could not agree after consulting with one another as to certain parenting decisions.

Prior to mediation and immediately following, Father objected to Mother’s insistence that the child be enrolled at a Louisville elementary school, Whitney Young, despite the Parties living in Fayette County (Lexington). Father contended that enrolling the child in Whitney Young would require significant travel time that would affect his parenting time and his ability to participate in the child’s school activities. Father also raised concerns over Whitney Young’s low test scores.

Against Father’s objections, Mother enrolled the child at Whitney Young for the 2021-2022 academic year. Father filed an Emergency Motion to Enforce and Amend the Mediation Agreement, arguing that Mother’s choice was unreasonable and should be considered a de facto relocation, thus directly violating Father’s joint custody rights. Father’s motion sought an award of attorney fees associated with having to litigate the issue created by Mother’s unilateral decision making. A hearing on Father’s motions was scheduled for December of 2021.

At the hearing, the Whitney Young Assistant Principal testified that the school was no longer offering its French Immersion Program and was unlikely to resume the program during the 2021-2022 school year. Mother testified that her primary reason for enrolling the child in Whitney Young was for the child to participate in the French Immersion Program, as the child was fluent in French. Mother also mentioned the school’s International Baccalaureate program.

Additionally, the Assistant Principal testified that all students attending Jefferson County Public Schools must register under a Jefferson County address. Mother acknowledged that she had rented an apartment in Jefferson County to enroll the child at Whitney Young and planned on living in the apartment with the child during the school year.

Father testified as to his concerns for the child attending Whitney Young. First, Father expressed concern over the effect the enrollment in a Jefferson County school may have on his parenting time. Second, Father mentioned that after examining the most recently published data from the 2019-2020 school year, Whitney Young had test scores in the bottom 20% of the state and had an alarming number of behavioral events.

The Fayette County Family Court issued oral findings following the December 2021 hearing. The Family Court granted Father’s Motion to enforce the Agreement but declined to modify the Agreement. The Court found that although the Parties’ Agreement granted Mother final-decision making authority over educational matters, the Agreement did not permit Mother to make unreasonable educational decisions or unilaterally make decisions that may significantly alter Father’s relationship with the child. The Court found Mother’s decision to send the child to Whitney Young to be unreasonable due to the unavailability of the French Immersion Program that drew her to the school and the school’s low test scores. The Court also found that the travel time between Jefferson County and Fayette County would affect Father’s parenting time. The Court predicted that this enrollment would later become Mother’s basis for a Motion to relocate and admonished such behavior.

The Family Court ordered Mother to immediately enroll the child in school in Fayette County and took the Parties’ cross-motions for attorney fees under submission. The Court subsequently entered an Order awarding Father $8,000 in attorney fees due to the litigation being a direct result of Mother’s unilateral decision making in violation of joint custody.

The Court of Appeals also denied Mother’s motion to strike Father’s responsive brief for failure to include ample supportive references to the record in his Argument section of the brief, in violation of RAP 32(B)(4).

The Court declined to dismiss the appeal as moot, despite Father’s contention that there was no longer a matter in controversy because the French Immersion Program was never reinstated at Whitney Young. The appeal was deemed not moot for Mother’s additional argument that her decisions were not subject to judicial review under the language of the Agreement granting her final decision-making authority.

The Court of Appeals reviewed the family court’s interpretation of the Agreement de novo and concluded that the language in the Agreement indicated that Mother’s educational decisions would be final only after a good-faith effort to come to an agreement. Additionally, the Court of Appeals agreed with the family court’s determination that Mother renting a home in the Jefferson County school district amounted to a de facto relocation.

The Court of Appeals affirmed the Fayette Family Court’s decision determining that Mother’s choice to send the child to a school outside of Fayette County was unreasonable. The Court maintained the family court’s position that while Mother had final decision-making authority over educational decisions, her discretion was not unlimited. Mother’s choice was unreasonable due to the effect it would inevitably have on Father’s parenting time and ability to be involved in the child’s school activities. Additionally, Mother’s choice to rent an apartment in Jefferson County was essentially a relocation, for which she did not seek permission from Father or the family court.

The Court of Appeals found no abuse of discretion in reviewing the family court’s award of attorney’s fees, specifically noting that the family court must have made a finding of reasonableness prior to awarding fees. Both parties having filed affidavits in support of their respective motions for attorney’s fees and submitting evidence of their financial resources at the request of the family court, it was determined that Mother had more financial resources than Father and had been the primary cause of the litigation, making an award of attorney’s fees reasonable.

The Court of Appeals affirmed the Fayette Family Court Orders finding Mother’s choice to send the child to a school in Jefferson County unreasonable and awarding attorney’s fees.

Digested by: Kendall Box, Esq.

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This case involves an automobile collision where Jean-Luc Henry and Dwayne Smith sued the drivers involved in the crash for bodily injury and their insurer, Allstate, for failing to provide required benefits. Allstate disputed charges from Dr. Megronigle, who provided chiropractic treatment, and served subpoenas for documents and deposition. After multiple rescheduling issues, the court ordered Dr. Megronigle to comply with the subpoenas. Dr. Megronigle appealed, but the appeal was denied. In response to the notice of voluntary dismissal filed by the Plaintiffs, Allstate filed a memorandum supporting its motion for attorney’s fees under CR 37.02(3). Following a hearing, the court ordered Dr. Megronigle to pay the reasonable fees associated with Allstate’s pursuit of the subpoenaed information. Dr. Megronigle appealed again, arguing lack of jurisdiction and abuse of discretion. The Court of Appeals affirmed, except for a dissenting opinion on the use of sanctions against a non-party. Dr. Megronigle sought discretionary review from the Supreme Court, which was granted.

Dr. Megronigle presented two main arguments before the Court. Firstly, he argued that the trial court lacked jurisdiction to impose sanctions on him because the Plaintiffs had voluntarily dismissed the case before the sanctions order was issued. Secondly, Dr. Megronigle asserted that the trial court abused its discretion by penalizing him for attempting to safeguard information that he believes was not subject to discovery.

I. The trial court maintained jurisdiction over Dr. Megronigle despite the notice of voluntary dismissal.

Dr. Megronigle argued that once he zeroed out Plaintiffs’ accounts and a notice of voluntary dismissal was filed, the trial court no longer had jurisdiction over him. However, the Court of Appeals’ analysis on this issue was deemed sufficient. According to CR 41.01, a plaintiff can unilaterally dismiss a case without court approval only if the opposing party has not answered or moved for summary judgment. In this case, Allstate had served its answer, making a unilateral dismissal invalid without court approval. The notice of voluntary dismissal filed by Dr. Megronigle, signed only by his counsel, lacked the necessary signatures of all parties and could be interpreted only as a motion to dismiss under CR 41.02(2). The trial court took no action on the notice and did not enter an order of dismissal. Therefore, the trial court retained jurisdiction when ruling on Allstate’s motion for costs.

II. Civil Rule 37.02(3) does not permit ordering a non-party to pay attorney’s fees.

Dr. Megronigle’s second argument is addressed, which claims that the trial court abused its discretion in awarding fees to Allstate under CR 37.02(3) because his opposition to the subpoenaed information was substantially justified. However, the court determined that the award was improper because the plain language of CR 37.02(3) does not allow the trial court to sanction a non-party. The term “party” in the rule refers only to entities that are parties of record in the proceedings, and Dr. Megronigle’s involvement in the case was solely due to the subpoenas served upon him. The court clarifies that while CR 37.02(3) does not apply to non-parties like Dr. Megronigle, there are other provisions in the rules that provide for sanctions against non-parties who disrupt the discovery process, such as CR 37.02(1)-(2). These include assessing costs for motions to compel and punishing disobedience of subpoenas as contempt of court.

The Supreme Court reversed the Court of Appeals decision and remanded to the Jefferson Circuit Court.

Digested by: Kendall Box, Esq.

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