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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http://opinions.kycourts.net/coa/2019-CA-000805.pdf

Father appealed Family Court’s child support order requiring him to pay child support to Mother. The Kentucky Court of Appeals first admonished the bar for noncompliance with the Rules of Appellate Procedure, describing the pervasiveness of the problem, which is continuously on the rise. Because Father’s brief violated at least 11 rules, the Court of Appeals reviewed for manifest injustice only.

Father earned $6,666.67 per month, and Mother earned $1,819.86 per month, for which the Child Support Guidelines would yield a base support obligation of $1,410.00, which became $2,284.96 including childcare and health insurance premiums. Father’s share of the obligation was $1,362.26. Family Court deviated from the guidelines due to the equally shared parenting time arrangement, such that Father’s obligation was $859.57. The Court of Appeals held that reducing Father’s child support obligation does not constitute manifest injustice.

Digested by Nathan R. Hardymon

The post Admonishing the Bar for Failure to Follow Appellate Rules; Affirming Child Support Obligation Under Manifest Injustice Review – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

http://opinions.kycourts.net/coa/2019-CA-001168.pdf

Father appealed a finding that he physically abused his son. The caption of Father’s notice of appeal listed “In re: [D.L.B., IV, a minor child” and “Commonwealth of Kentucky, Cabinet for Health and Family Services” as Petitioners. The body of the notice of appeal named Father as the appellant and “the Commonwealth of Kentucky” as the appellee. The certificate of service listed the assistant county attorney who litigated the DNA case, the trial judge, the guardian ad litem, and Mother’s attorney. No representative for the Cabinet was listed on the certificate of service, and the Cabinet did not participate in the appeal. Father appealed from Family Court’s adjudication order.

The Court of Appeals held that failure to give actual notice of the appeal to the Cabinet may result in dismissal, because just including the Cabinet in the caption of the notice of appeal does not amount to substantial compliance with CR 73.03, requiring naming all parties to the appeal and a certificate that all parties have been served with the notice. The Court of Appeals also held that disposition orders are the final and appealable orders—not adjudication orders. For those reasons, the appeal was dismissed.

Judge Thompson dissented and argued that the Court of Appeals should consider the merits of the appeal, because Father substantially complied with the requirements of CR 73.03 by naming the Commonwealth of Kentucky as a party to the appeal, because the Cabinet is merely the agency through which the Commonwealth acts.

Digested by Nathan R. Hardymon

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http://opinions.kycourts.net/coa/2019-CA-001207.pdf

Mother moved Family Court to enter an order allowing her to enroll Child at a private school due to Child experiencing academic difficulties in her parochial school, to apply for financial aid, and asking that Father be required to assist in the financial aid application process. Father objected, citing concerns, such as the cost, the private school being strictly a special needs school, his belief that the public school would be more inclusive and offer more accommodations, and that he had not paid private school tuition at the parochial school. On the hearing on Mother’s motion, Family Court heard testimony from the parties, the friend of the court, and from a psychologist. Family Court made the following findings:

In this case, the parties’ child unquestionably has extraordinary educational needs that have shown limited, if any improvement after two years’ implementation of a Student Accommodation Plan and the assistance of private tutors. The child’s academic delays have become so pronounced that she is unable to return to her school for second grade. The child’s teachers, tutors, school, principal, school counselor, and pediatrician have all referred her to a specialized school. A comprehensive psychological evaluation yielded the same recommendation.

Family Court ordered that Child attend the private school and that the parties pay the cost of attendance in proportion to their incomes. Father filed a motion to alter, amend, or vacate, arguing that he never agreed to pay for the cost of the private school tuition and Family Court could not order him to do so without a finding that the public schools were inadequate to meet Child’s educational needs. Family Court denied this motion. Father appealed.

The Kentucky Court of Appeals held that Family Court did not make the necessary findings to properly order Father to pay private school tuition. Ordering a parent to pay private school tuition is a deviation the from child support guidelines, which deviation requires a showing of proper grounds under KRS 403.211(3). Two such grounds for deviation are (1) an agreement between the parties to deviate and (2) a child’s extraordinary educational needs. Family Court made no finding that the parties agreed to a deviation. Family Court did make a finding that Child had extraordinary educational needs but failed to address case law, Miller v. Miller, 459 S.W.2d 81 (Ky. 1970), requiring a showing that public schools are inadequate for a child’s educational needs to order a parent to pay private school tuition.

Digested by 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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Trial court entered an order denying Father’s motion to place his minor child with him or to permit unsupervised visitation.

Court of Appeals dismissed Father’s appeal because the order of the trial court was interlocutory as it did not preclude Father from seeking similar or expanded relief in the future.

Digested By: Emily T. Cecconi

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Grandparents filed a petition for grandparent visitation on June 27, 2012. They entered into an agreed order in the matter on July 24, 2012, which was set aside by order entered December 20, 2013. Grandparents filed a notice of appeal, but while that appeal was pending entered into two additional agreed orders resolving the grandparent visitation issues. By agreed order entered November 17, 2014, the family court adopted by reference the September 3, 2014, and the

November 4, 2014, mediation agreements. Grandparents did not file any appeal of the November 17, 2014 Order. Subsequently, the original appeal was dismissed as the grandparent issues were still pending at the time of the December 20, 2013 Order. Grandparents then requested the court enter a final and appealable order, which the court did on October 30, 2015 stating “an order has been entered on the outstanding issue of grandparent visitation. No other issues are pending before this Court for adjudication.” Grandparents appealed the October 30, 2015 Order on November 10, 2015.

The Court of Appeals dismissed the current appeal as it was filed untimely holding that because the case involved one claim for grandparent visitation, and did not include multiple parties, CR 54.02 did not apply. Pursuant to CR 54.01, the November 2014 Order resolving grandparent visitation was the final order, even without language of finality required by CR 54.02. Therefore, the November 2015 appeal was too late. Although the parties attempted to preserve their right to appeal by agreement, agreement of parties is not sufficient grounds to confer jurisdiction to an appellant court. “Upon resolution of the grandparent visitation issue in November 2014, there was nothing left to adjudicate on the claim.”

Digested by Elizabeth M. Howell

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Wife believed Husband transferred marital property to his sons to deprive her of the marital estate. Wife filed an amended Petition in an attempt to join the sons and business to the dissolution action. The sons and the business moved to be dismissed. The trial court dismissed and state it was “final and appealable with no just cause for delay.” Wife filed a motion to alter, amend, or vacate, which was denied.

Later, Wife filed a motion to add the sons and business as indispensable parties. The trial court, over objections, added them as parties, but ultimately granted summary judgment. Wife appealed the Order granting summary judgement.

The Court of Appeals dismisses the appeal holding that “because the sons were dismissed with prejudice pursuant to a final and appealable order that was never appealed, the trial court was without subject matter jurisdiction to add the sons back to the litigation.” The court’s order dismissing the sons and business with prejudice was, “in effect, a judgment in their favor on the claims,” and as it was never appealed, the court lost jurisdiction with regard to Wife’s claims against them.

Digested by Elizabeth M. Howell

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The trial court entered an Order reducing maintenance which neither party received until twelve days after the Order was entered. Wife filed a motion to alter, amend, or vacate pursuant to CR 59.05, CR 60.01 or CR 60.02. The trial court found that no fault could be attributed to Wife for the late filing of her motion, but concluded it had no discretion to consider her motion stating it had lost jurisdiction after ten days expired.

The Court of Appeals held that the trial court retained jurisdiction to consider Wife’s motion as it is “well within the rule’s stated grounds and the authority of the court to invoke CR 60.02 when a clerk is responsible for a mistake that prevents a party from receiving notice of the entry of an order or judgment.” The Appellate Court notes it cannot grant Wife relief on the basis of CR 59.05 alone, as it’s interlocutory in nature, but may grant relief pursuant to CR 60.02.

Digested by Elizabeth M. Howell

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