The Daviess Family Court entered a divorce decree for the parties in 2020.  Following entry of the decree, both parties filed a motion to alter, amend, or vacate the divorce decree.  An amended final divorce decree was entered and neither party filed a notice of appeal nor a motion to alter, amend, or vacate the amended decree.  Although this appeal followed, the Court of Appeals takes aim at the procedural compliance of the parties’ briefs in its opinion dismissing the case.

First, the Court noted the legal issues are not readily identifiable in the parties’ briefs; the Court simply recognized the evident discord among the parties reflecting in the drafting.

Second, the Court went into detail regarding the parties’ failure to follow Kentucky appellate procedural rules.  The Court provides examples such as a lack of citations to the record, citations to legal authority, appropriate appendices, and a host of drafting and referencing failures (i.e., margins, page number references, extruding tabs in appendix, and exclusion of proper cover page).

Due to these procedural shortcomings, the Court does not address the substantive arguments in the parties’ briefs.  The Court noted that substantial compliance to the procedural rules, which would presumably urge the Court to consider the merits of the parties’ briefs as argued in the dissent, was not applicable in the present case.  The Court concluded that it could not infer counsel “seriously reviewed CR 76.12 before briefing . . .,” and therefore, it would not consider any potential issues the briefs attempted to argue.

Judge Thompson dissented, arguing that lesser and limited sanctions should be implemented instead of outright dismissal of the appeal and striking of the parties’ briefs.  Judge Thompson further argues that dismissal of an appeal “should always be a remedy of last resort.”  

Caitlin P. Kidd, Esq.

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In certain circumstances, such as when an adult child is disabled, child support may continue past the age of 18 (or 19 and still in high school).

If the support obligation is for more than one child, the obligation will not automatically terminate when one child reaches the requisite age. In these situations, the parent with the child support obligation must request a modification of his or her obligation.

There are many potential exceptions to the rules provided above and it is always important to discuss the facts specific to your case with a family law attorney.

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Grandmother, and custodian of the children at issue herein, was named as the person responsible for abuse and neglect the court found to have occurred. Grandmother appealed. The Court of Appeals ordered Grandmother to show cause why the appeal should not be dismissed for failure to name the Cabinet for Health and Family Services (“the Cabinet”)—an indispensable party—as the Cabinet was not named in either the body or the captions of the notice of appeal. The Court of Appeals dismissed the case. Grandmother then tendered a joint “motion to reinstate appeal” pursuant to Kentucky v. Wine, 694 S.W.2d 689, 694 (Ky. 1985) and Hollon v. Kentucky, 334 S.W.3d 431, 438 (Ky. 2010), which held that a belated or reinstated appeal could be had under certain conditions in criminal cases.

Grandmother argued that as DNA cases are quasi-criminal in nature, reinstatement of appeals should be an available remedy. The Court of Appeals rejected this argument, because Grandmother provided no authority or argument for extending reinstated appeal procedures to civil cases.

Grandmother argued that the Cabinet’s actual notice of the appeal is sufficient to render the Cabinet a party. The Court of Appeals rejected this argument, citing City of Devondale v. Stalling, 795 S.W.2d 954, 957 (Ky. 1990), because the Cabinet was not named in the notice of appeal.

Digest by Nathan R. Hardymon

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To determine whether modification of a child support order is appropriate for a case, Kentucky Courts ask whether there is a showing of a material change in circumstances that is substantial and continuing. If an application of the Kentucky child support guidelines would result in equal to or greater than a fifteen percent (15%) change in the monthly child support obligation, there is presumed to be a material change in circumstances.

If your loss or decrease in income would be a material change in circumstances, the next question is whether the material change in circumstances is substantial and continuing. To be considered a substantial and continuing change in circumstances, the change in circumstances must be a “lasting circumstance.” Snow v. Snow, 24 S.W.3d 668, 673 (Ky. App. 2000) (holding that circumstances, which “cannot be . . . lasting circumstance[s] . . . do not provide a proper basis for reducing [a] child-support obligation.”).

If you were terminated from your employment due to the COVID-19 pandemic and are unlikely to be able to return to your employment, such a circumstance may be a lasting circumstance. If you have been laid off or your income has decreased, but you will return to your employment and your income will return to substantially the same amount, such a circumstance would probably not be considered a lasting circumstance.

If you and your spouse or former spouse are unable to come to an agreement regarding a child support modification, you may want to consider consulting an attorney. While all civil dockets have been canceled for non-emergencies, creative solutions may be available. We at Diana L. Skaggs + Partners, PLLC are continuing to meet with clients and prospective clients via Zoom, FaceTime, or telephone, and are always available for new client inquiries on our website.

Nathan R. Hardymon

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In a dependency, neglect, and abuse action, the Family Court denied an indigent Mother’s request for expert funding from the indigent funding pool pursuant to KRS 31.185 and KRS 31.110, on November 9, 2017. On December 21, 2017, the Family Court entered a final disposition order. On January 3, 2018, Mother attempted to file a notice of appeal of the December 21, 2017 order, but failed to include a motion to proceed in forma pauperis. The notice of appeal was returned to Mother as a result. Mother then, on January 25, 2018, refiled the notice along with a motion to proceed in forma pauperis. On the same day, she filed a Motion for Belated Appeal in the Family Court, arguing that the date stamp on her copy of the final order was difficult to read, and she believe it reflected an entry date of December 27, 2017. On January 26, 2018, the Family Court granted the belated appeal, citing excusable neglect pursuant to CR 73.02(1)(d).

The Court of Appeals vacated the final disposition order on the merits, while only briefly discussing the timeliness issue in a footnote—accepting jurisdiction despite Mother incorrectly moving for a belated appeal in the Family Court rather than the Court of Appeals. The Cabinet for Health and Family Services appealed to the Kentucky Supreme Court, arguing, in addition to the merits, that the failure to timely appeal requires dismissal.

The Supreme Court vacated the opinion of the Court of Appeals, holding it lacked jurisdiction. It reasoned that a notice of appeal and the filing fees or a motion to proceed in forma pauperis must be filed within 30 days of the date of service of an order. Without the properly filed motion, the Court of Appeals lacks jurisdiction. An exception exists, allowing a belated filing, where “a showing of excusable neglect based on a failure of a party to learn of . . . an order which affects the running of the time for taking an appeal.” However, “a misunderstanding over the filing date is not the type of excusable neglect that would enlarge the time for filing” the notice of appeal, and a misreading of an entry date is not “excusable neglect.”

Digested by Nathan R. Hardymon

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Trial court modified a timesharing agreement to allow Mother more time with the parties’ minor child. Under the Trial Court’s Order, Father had visitation with the minor child from Monday at 6:00 p.m. until Wednesday at 6:00 p.m. and every other weekend from Friday at 6:00 p.m. until Monday at 6:00 p.m. Summer timesharing and holidays were also equally divided between the parties. Father appealed.

In filing Father’s appeal, Father’s counsel failed to comply with several of the basic requirements of CR 76.12. Although the Court of Appeals expressed a deep dissatisfaction that Father’s counsel failed to follow the requirements of CR 76.12, the Court found that Counsel’s misstep justified an appropriate sanction less than dismissal, namely, to “review the issues raised in the brief for manifest injustice only.”

In reviewing the issues raised on appeal for “manifest injustice,” the Court of Appeals affirmed the Trial Court’s decision to increase timesharing in favor of Mother stating that “just because Father spends less time with T.F. than he did under the decree, the timesharing he now has is not ‘less than reasonable visitation.'”

Digested by: Emily T. Cecconi

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