Jefferson Circuit Court

Husband and Wife were married for 28 years. A divorce decree was entered in 2007, which divided the parties’ assets and provided a maintenance payment to Wife until Husband reached the age of 65 in 2017. Both parties appealed. In 2009, while their appeals were pending, the parties received notice that their funds held by West End Financial had been lost to a Ponzi scheme, resulting in a loss of over $1 million, $800,000 of which had been awarded to Wife as part of the decree. In 2016, Wife filed a Motion to Modify Maintenance, citing changed circumstances related to the loss of her $800,000 to the Ponzi scheme, Husband having returned to an active medical practice despite being disabled at the time of the 2007 divorce decree, and her loss of her own sums to the Ponzi scheme. The circuit court issued an order determining that the change in circumstances rendered the original maintenance award unconscionable, and later ordered that Wife receive a modified, increased maintenance award. The circuit court also ordered $46,000 in attorney’s fees to Wife’s attorney, payable directly to the attorney who could enforce the judgment in his own name.

Husband filed a notice of appeal and Wife filed a motion to dismiss for Husband’s failure to name Wife’s attorney as an appellee. The Court of Appeals concluded that the circuit court abused its discretion in granting Wife’s motion to modify maintenance, specifically disagreeing with the circuit court’s determination that the changes in circumstance rendered the original maintenance award unconscionable. Both parties filed motions for discretionary review in the Supreme Court, which reversed the Court of Appeals’ decision and remanded to the circuit court for reinstatement of the order modifying maintenance.

The Supreme Court addressed three issues: whether the circuit court erred in modifying the original maintenance award; whether the failure to name an attorney with an enforceable attorney’s fees award is fatal to an appeal; and whether the attorney’s fee award was proper.

First, the Supreme Court found that the Court of Appeals erred in reversing the circuit court’s modification of maintenance, because there was substantial evidence supporting its decision. Namely, the parties had been on equal financial footing at the time of the decree in 2007, but were not at the time of Wife’s motion to modify. The Court further opined that where there is a sufficient basis for the lower court’s conclusion, a reviewing court may not reverse simply because it would have decided the issue differently.

Second, the Court held that Husband’s failure to name Wife’s attorney as a party to the appeal was not a fatal error. The Court determined that though Husband had not strictly complied with the rules in adding the attorney as a party to the case, the attorney had adequate notice of appeal and the ability to protect his own interest in seeking affirmation of the attorney’s fee award, because he was named as Wife’s attorney on the first filing in the Court of Appeals and was included on the distribution list. The Court stated that under the new Rules of Appellate Procedure, the failure to name an indispensable party is no longer automatically fatal to an appeal.

Third, the Court held that the circuit court did not abuse its discretion in awarding attorney’s fees because the circuit court properly considered the parties’ financial resources, incomes, and other factors, and awarded attorney’s fees accordingly.

Carter Anderson

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Barren Circuit Court

After the Cabinet filed a dependency, neglect, and abuse Petition on behalf of Child who was transported to Kentucky from North Dakota (N.D.) by people other than her parents, the Family Court ordered the child be returned to N.D. for a trial home visit with her mother (Mother), who was also working a case plan supervised by the N.D. child-welfare agency. Specifically, the Family Court’s January 5, 2022, order directed that the Cabinet was to facilitate the child’s return to N.D. immediately and that Cabinet worker Muse was to arrange the return travel. On January 24^th, Mother’s appointed counsel filed a motion to hold the Cabinet in contempt for their failure to comply with the January 5^th order, stating that no attempts had been made to comply. At a February 8^th hearing on the motion, local Cabinet worker Muse testified about emails she had received from Frankfort Cabinet workers that the child was not to be returned to N.D. despite the Family Court’s order. Counsel for the Cabinet, Locke, identified those Frankfort Cabinet workers as Khoury, Lane, and Humphrey. The Family Court found the Frankfort Cabinet workers to be necessary witnesses and continued the hearing to February 10^th. At this hearing, Cabinet counsel Clay appeared as counsel in place of Locke and the aforementioned Frankfort Cabinet workers testified as to why Child had not been returned to N.D. At the close of the hearing, the Family Court – still unclear as to why the Cabinet had not complied with its January 5^th order and who was responsible for the failure – ordered again that Child be returned to N.D. by February 15^th. The Family Court took the contempt motion under submission, directed the Cabinet to produce all emails in its possession related to Child’s case (except for those that included Counsel in the email), and directed Mother’s Counsel and Child’s Guardian ad Litem (GAL) to file affidavits detailing the additional work each had to complete to enforce the January 5^th order. Child was subsequently returned to Mother in N.D.

On May 8^th, the Family Court entered its order on the contempt motion, finding inconsistencies between Frankfort Cabinet workers Khoury, Lane, and Humphrey’s testimonies and their statements in the produced emails. The Family Court found that Frankfort Cabinet workers Humphrey and Lane had made the decision not to return Child despite the January 5^th order and that they failed to assist local Cabinet worker Muse in carrying out the order. The Family Court further found that Cabinet Counsel Clay had misled the court by placing blame at the Cabinet’s local level and presenting false testimony of Cabinet workers Humphrey and Lane. The Family Court subsequently found the Cabinet in contempt for its willful failure to abide by the January 5^th order and it ordered the fees of Child’s GAL and Mother’s Counsel to be paid by the Cabinet. While the Family Court did not impose sanctions against workers Humphrey and Lane or counsel Clay, it did refer Humphrey and Lane to the Commonwealth Attorney for possible perjury prosecutions, and Clay to the Kentucky Bar Association (KBA) for investigation of potential misconduct.

The Cabinet filed a motion to alter, amend or vacate, which was heard on June 14^th. The Family Court clarified its holding that workers Lane and Humphrey had not been found individually in contempt, clarified its holding that Counsel Clay had been referred to the KBA only for investigation as to whether Clay committed malpractice by indicating that additional Cabinet representatives were in contempt of Court without consulting with them first or calling them to testify, and reaffirmed its finding of contempt against the Cabinet based on the emails produced by the Cabinet which indicated the Cabinet – despite its awareness of the January 5^th order – refused to comply.

The Cabinet appealed, and the Appeals Court affirmed. The Appeals Court held that neither the Cabinet’s compliance with the January 5^th order prior to the entry of the May 8^th order of contempt, nor its argument that the Family Court imposed criminal contempt sanctions because they were not subject to purgation, barred the contempt finding. The compensatory penalty – that the Cabinet pay the attorney fees for Mother’s counsel and Child’s GAL – was appropriately within the scope of civil contempt, and the payment of the compensatory damages itself purged the contempt. Further, the Family Court’s referral of the individual cabinet workers and the cabinet counsel to the Commonwealth Attorney and the KBA, respectively, was neither a sanction for contempt nor improper. Thus, those individuals were not aggrieved by the Family Court’s orders. The Appeals Court ultimately found that the Family Court did not abuse its discretion in finding the Cabinet in contempt.

Carter Anderson

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Marion Circuit Court

Mom and Dad, joint custodians of one child, disagreed on who should be permitted to claim Child for tax purposes. Dad – who had a significantly higher income than Mom – motioned the Circuit Court to claim Child each year pursuant to 26 U.S.C. § 152. Mom requested that she be able to claim Child during the years she was unable to claim her older child (not Dad’s) as a dependent. The Circuit Court, relying on Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 781 (Ky. 2015), held that it was required to allocate the tax credit such that the financial benefit to Child was maximized. The Circuit Court found that if Dad did not claim Child, his refund would be $4,073 less; if Mom did not claim Child, her refund would be $4,347 less. Thus, the Circuit Court held that because Mom and Dad were joint custodians exercising equal timesharing, and the consequence for not claiming Child was similar for each parent, it was proper for Dad to claim Child while Mom could still claim her older child and when the older child aged out, then Mom could claim Child. Dad appealed and the Appeals Court reversed the Circuit Court’s ruling.

After determining that 26 U.S.C. § 152(c)(4)(B)(ii) applied because Child was in the custody of each parent for half of the year, it followed the federal tax code’s direction that the parent with the highest adjusted gross income (AGI) shall claim Child, and ordered that Dad be able to claim Child until such a time that Mom’s AGI surpassed Dad’s. The Appeals Court noted that in any case, the noncustodial parent (the parent with the lower AGI) may claim a child if the custodial parent (the parent with the higher AGI) signs a written declaration that they will not claim the child as a dependent for that taxable year and the noncustodial parent attaches that declaration to their own return for that year. Ultimately, the Appeals Court instructed that it is the federal tax code which allocates the deduction – not Adams-Smyrichinsky, and thus, the federal rule allocating the benefit to the parent with the higher AGI governs. However, the Appeals Court noted that a circuit court may look beyond the federal tax code rule and order that the parent with the lower AGI claim the child only if there are extraordinary reasons outside of fairness or mathematical equity between the parties that compel a deviation from the normal IRS rules. In citing the reason for deviation, a ruling should also explain why awarding the exemption to the noncustodial parent benefits the child and thus affects the child’s support. In all other cases, a circuit court should presume that the IRS rules apply.

In this case, the Circuit Court did not discuss how the money saved by claiming Child in a particular parent’s household would actually benefit Child, and by failing to state a reasonable nexus in assigning the exemption to Mom, it abused its discretion.

Carter Anderson

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Allen Circuit Court

Allen Family Court entered an IPO against Respondent in 2019 based on Petitioner’s allegations that Respondent stalked, harassed, and threatened her. Shortly before it was set to expire in July 2022, Petitioner filed a motion to extend the IPO for three years. The family court set the matter for a hearing, at which it extended the IPO until July 2025. Respondent filed an appeal, in which she alleged that the family court lacked jurisdiction to hear the IPO, arguing that only a district court had jurisdiction to hear such a case, and challenged the sufficiency of the evidence supporting the family court’s order granting an extension of the IPO. Petitioner did not file a brief.

The Court of Appeals recognized that family courts frequently consider IPOs, and held that, pursuant to KRS 456.030(6)(a), district and circuit courts have concurrent jurisdiction over petitions filed under that chapter. The Court then addressed Respondent’s other claim and held that the family court’s decision was not supported by sufficient evidence of stalking, the reason given for Petitioner’s motion to extend. The Court stated that although the family court checked the box on the standard form finding that stalking had occurred, it gave no additional written findings of fact and did not indicate any threats made to Petitioner by Respondent that fit within the definition of “stalking” pursuant to KRS 508.140 and KRS 508.150. Additionally, comments made by the judge from the bench were not incorporated into the standard form used to enter the extended IPO. Further, the testimony given by the parties was vague and merely reiterated statements that formed the basis for the original issuance of the IPO in 2019. No other parties testified. The Court stated that the incidences Petitioner testified to – that Respondent had walked within arm’s reach of Petitioner at their children’s school event and that Respondent had taken photos of Petitioner at their children’s sporting event – did not rise to the level of stalking. The Court held that because stalking had not occurred and because no new allegations were put forth other than those that Petitioner used to support the entry of the original IPO, the family court lacked sufficient evidence to extend the protective order. The Court reversed and vacated the IPO. 

Carter Anderson

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Jefferson Circuit Court

Parents took infant Child to the hospital after he fell off a couch and hit his head on the floor. The Cabinet was alerted to bruising around Child’s ears and four months later, a DNA petition naming Parents was filed. The petition noted that Cabinet had consulted two physicians who indicated the bruising was indicative of physical abuse. Parents asserted that Child’s bruising stemmed from a medical condition called Von Willebrand Disease, in which blood does not clot properly and bruising occurs easily. Through their privately retained counsel, Parents asked the family court to order that Cabinet provide funds so Parents could retain an expert. The motion did not specify what type of expert they wished to retain and they did not submit affidavits of indigency, but their motions did asserted that Mother was not employed outside the home, Father worked earning $19 per hour, and they owned no assets that they could sell to retain an expert. The family court granted the motion, providing an extremely terse ruling. Cabinet filed a motion to vacate, asserting Parents’ motion was flawed because it did not discuss the type of expert Parents wished to retain and it inadequately showed Parents to be indigent. Cabinet also argued the family court’s findings were inadequate. The family court held a hearing on Cabinet’s motion where counsel for Parents stated they wished to retain an expert who was board certified in hematology but did not give a specific identity of the desired expert. The family court issued another terse order with some additional reasoning, concluding that Parents were entitled to state funds to retain an expert. Though brief, the order found that $10,000 was a reasonable amount for Cabinet to provide to the parents for their expert. Additionally, Parents submitted affidavits of indigency after the hearing. The family court then signed orders finding Parents indigent. Cabinet filed this expedited appeal.

First, the Court of Appeals examined whether an interlocutory appeal was proper in this case. In determining that it was, the Court applied the collateral order doctrine laid out in Childers v. Albright, 636 S.W.3d 523 (Ky. 2021). Then, the Court held that the family court did not abuse its discretion in granting the parent’s motion requiring Cabinet to pay their expert’s fees up to $10,000. The Court relied on Cabinet for Health & Family Services v. K.S., 610 S.W.3d 205 (Ky. 2020) which held that indigent parents in a DNA action have a constitutional right to state funds to retain an expert in cases involving complex issues of medical evidence where such evidence may be vital in understanding the relevant issues. The motion by indigent parents must consider whether the request was pleaded with specificity, whether the funding is reasonably necessary and whether due process weighs in favor of appointing the expert.

The Court found that Parents did not have to specify the identity of the expert that they wished to hire, and that their oral statement of the type of expert (hematologist) at a hearing on Cabinet’s motion to vacate was specifically sufficient. The Court stated that the family court did not abuse its discretion in ruling that the providence of state funds for the expert was reasonably necessary, since Parents maintained the Child’s bruising resulted not from abuse, but from a medical condition. The Court addressed Cabinet’s argument that Parents did not demonstrate their indigency sufficiently, and stated that though Parents had hired private counsel, their proof of their indigency was uncontradicted, so the family court had not abused its discretion in finding them to be so. Finally, the Court found that due process weighed in favor of apportioning state funds for an expert in this case on fundamental fairness considerations, since Cabinet had the opportunity to consult with experts prior to the filing of the DNA petition. The Court concluded that although K.S. requires a trial court to specifically state its reasons for approving or denying a parent’s request, the terse order issued by the Jefferson Family Court after its hearing on Cabinet’s motion to vacate adequately explained the basis for its decision.

Carter Anderson

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Simpson County Circuit Court

Husband and Wife married in 2011 and three children were born during their marriage. The youngest was S.W. Wife was having an affair with Boyfriend when she became pregnant with S.W. and told Boyfriend that he could be the father of the child. No DNA testing was done prior to S.W.’s birth in November 2015. In 2017, Husband discovered through an over-the-counter DNA test that he was not S.W.’s biological father. Boyfriend subsequently took a DNA test that confirmed his paternity and expressed that he wanted to be involved with S.W. Wife quit communicating with Boyfriend. In 2019, Husband filed a petition for dissolution which stated the three children were born of the marriage and requested the parties share custody and timesharing. Wife admitted to the allegations in the petition and filed her response and the parties’ settlement agreement simultaneously. No issues of S.W.’s paternity were raised in the dissolution proceedings. A decree was entered in September 2019, adopting the parties’ settlement agreement. Boyfriend later learned that paternity of S.W. had been adjudicated pursuant to Husband and Wife’s decree. In October 2020, Boyfriend filed simultaneous motions to intervene and amend the final judgment in the dissolution action pursuant to CR 60.02, arguing that he was the biological father of S.W. and sought a finding to that effect so that he could pursue custody and timesharing. Husband opposed those motions and Wife took no position. The family court summarily granted Boyfriend’s motion to intervene and continued his motion to amend, scheduling it for a hearing. Husband filed a motion to alter, amend or vacate that order.

In July 2021, two orders were entered in the dissolution proceeding: an order denying Husband’s motion and an order sustaining Boyfriend’s motion to amend the final judgment pursuant to CR 60.02. The family court considered the factors enumerated in Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004) regarding whether intervention was warranted post-decree, and the history as to what had transpired in the dissolution and paternity cases. The family court concluded that Boyfriend’s special burden for post-judgment intervention was met, and granted Boyfriend’s motion to amend the final judgment. Husband appealed from the order allowing Boyfriend to intervene and the order granting Boyfriend’s motion to amend the final judgment, arguing that the family court abused its discretion in allowing his intervention because his motion to intervene was untimely filed under CR 24.01 and CR 24.02. Specifically, he argued that Boyfriend was aware he could have been S.W.’s father during Wife’s pregnancy, actually was aware of that fact prior to Husband and Wife’s divorce, waited too long to attempt to intervene and had no meaningful relationship with the child.

The Court used the Carter five factor test to determine the timeliness of Boyfriend’s motion to intervene and concluded that the family court adequately addressed the Carter factors and acted appropriately in determining that Boyfriend’s intervention was timely. The Court held that although Boyfriend was aware he could be S.W.’s father before S.W. was born, his intervention was not precluded under these circumstances as untimely due to the constitutional dimension of his interest, his lack of knowledge that paternity could be and was in fact resolved in the dissolution without any notice, and the fact that Husband and Wife knew of the question as to S.W.’s paternity but did not make the family court aware of that.

The Court of Appeals also affirmed Boyfriend’s intervention in the dissolution proceeding. It was clear to the Court that Boyfriend had an interest in the divorce proceeding which none of the existing parties could or did adequately protect. The Court found that relief was appropriate pursuant to CR 60.02(f) based on Boyfriend’s constitutional rights as S.W.’s biological parent and that he had not had an opportunity to present his claim that he should be determined as S.W.’s father on the merits. The Court determined that fraud had occurred against Boyfriend as he was never joined as a party or informed that he needed to intervene during the dissolution proceeding or else Husband would become S.W.’s father, and thus he was prevented from appearing and asserting his rights. Further, a fraud had occurred against the family court, as it was prevented from knowing the facts, which would have required it to join Boyfriend as a party or delay entry of the judgment pending a separate paternity action.

Carter Anderson

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JEFFERSON, BRECKINRIDGE

Cousins sought a writ directing Jefferson Family Court to enter an order granting them temporary custody of Child in the Jefferson County action, estop Cabinet from any activities inconsistent with the permanency goal of adoption, and relinquish jurisdiction concerning the custody and adoption of Child in favor of the Breckinridge Circuit Court.

In November 2019, Child was born and subsequently removed from Mother. After her release from the neo-natal intensive care unit, Child was placed with Cousins, who were approved as foster parents in November 2020. A DNA action was filed in January 2020 in the Family Court, wherein Mother later stipulated to neglect. An order entered in January 2021 by the Family Court provided that the permanency goal was to return Child to Mother and that Child was to remain in Cabinet’s custody.

Cabinet filed an involuntary termination of parental rights (TPR) action in the Family Court in August 2021 because of the length of time that Child had been in care, the relative newness of Mother’s compliance with her case plan and a lack of bonding between Mother and Child. No significant litigation occurred in that case until June 2022.

Meanwhile, the DNA action was before the Family Court for a second annual permanency review hearing. A report was filed on January 24, 2022, that documented Mother’s progress in completing her case plan and remaining sober. In February 2022, an order of permanency found that Mother was compliant and sober but had no bond with Child whatsoever, and thus, Child was to remain in Cabinet custody and be placed for adoption. Despite the goal change to adoption, Mother’s visitation continued and in April 2022, the Family Court ordered Mother could have increased supervised visitation and that Cabinet may expand to overnight visits which were not to begin prior to August 2022.

In June 2022 Cousins hired an attorney who discussed the Cousins’ desires to intervene in the TPR action with Cabinet. The following Sunday, June 29, 2022, Cabinet’s attorney emailed Cousins’ attorney to inform them that the TPR action had been dismissed. This dismissal was the result of a voluntary notice of dismissal, which Cabinet had efiled that same Sunday. Cousins immediately filed their motion to intervene, but the Family Court entered an order dismissing the TPR on June 29, 2022, without having ruled on the motion to intervene.

Cousins then filed an adoption petition in Breckinridge Circuit Court on June 30, 2022, and a Petition for Custody on July 5, 2022. Cabinet moved to dismiss these petitions on August 1, 2022. The matter was set for hearing on August 17, 2022, during which the Breckinridge Circuit Court declined to change custody of Child and scheduled the matter for an evidentiary hearing on November 28, 2022. The motions to dismiss were still pending.

Also in August 2022, a breakdown between the parties occurred when Child was to spend her first overnight with Mother. Prior to the visit’s scheduled start, Cousins contacted Cabinet to report concerns about the visit. Specifically, that Mother’s brother – who had previously been incarcerated in relation to his causing the death of a child and seriously injuring another child – was living in her home. During that phone call, Cabinet informed Cousins that it was concerned about their compliance with their foster care contract and that their adoption worker would be in contact, which Cousins perceived as a threat. Cabinet’s adoption worker subsequently closed Cousins’ home and cited Cousins’ interference of visits between Mother and Child as the reason for the closure. Until August 2022, there was no record of Cousins interfering with the relationship between Child and Mother.

On August 19, 2022, Cousins filed an ex parte motion for sole temporary custody of Child in the Breckinridge Circuit Court custody action. The motion was granted that same day and the matter was set for an evidentiary hearing. After its receipt of the Breckinridge Circuit Court’s order, on August 22, 2022, Cabinet filed its own emergency ex parte motion in the Family Court to return Child to Cabinet custody. The attached certificate of service did not indicate Cousins were notified of this motion despite their having temporary sole custody pursuant to the Breckinridge Circuit Court order. Cabinet’s motion was heard on the Family Court’s emergency docket and was granted that same day and ordered Cousins to turn over Child to Cabinet. Cousins complied and Cabinet ultimately placed Child in Mother’s care.

On August 25, 2022, Cousins filed this original action and motion for immediate relief, which was granted on September 2, 2022. Cousins were also given temporary custody of Child pending disposition of the writ petition. On September 6, 2022, Cabinet filed its own petition for writ of prohibition, initiating Case No. 2022-CA-1059-OA., which was denied by separate opinion and order.

On September 15, 2022 the Jefferson Family Court conducted a hearing on Mother’s motion for return of custody in the DNA action. No testimony or evidence was introduced and there was no consideration as to Child’s best interest aside from recitation by the Cabinet and the Jefferson County GAL that they believed it was in Child’s best interest to be returned to Mother. Cousins attempted to bring up an alleged burn mark that Child received while in the care of Mother in August 2022, but Cabinet asserted that no DNA petition had been filed and that the incident was irrelevant. The Family Court then ordered – in contravention of the Court of Appeals amended order dated September 3, 2022 –that custody of Child be returned to Mother. The orders entered by the Jefferson Family Court on September 15, 2022, contained limited findings of fact and conclusions of law, and there were no written findings of fact regarding the best interests of Child.

Petitioners then filed a second motion for intermediate relief with the Court of Appeals requesting a stay of the Family Court’s September 15, 2022, order. That same day, the Court of Appeals entered an order requiring parties to maintain the status quo as set forth in its amended September 3, 2022, order. The parties responded to the Cousins’ motion to stay: Mother requested the Court deny it; Cabinet had no objection to maintaining the status quo; the Breckinridge County GAL supported the stay in a response that reflected positively on Cousins and detailed Child’s worsened mood, behavior and temperament after having been in Mother’s home for only a few days earlier in the year. Cousins’ motion for a stay was granted on September 20, 2022, and the Court of Appeals addressed the writ of prohibition.

The Court of appeals determined that this case sub judice qualified for a writ under the special cases exception which recognizes a subcategory of writs in cases where “a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and a correction of the record is necessary and appropriate in the interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). The Court of Appeals held that the Family Court acted erroneously in dismissing the TPR action without having ruled on Cousins’ motion to intervene in June 2022, despite them having a right to intervene. Without such a ruling, Cousins had no way in which to appeal. The Court disagreed with Cabinet’s argument that its voluntary dismissal of the TPR meant the permanency goal automatically reverted to reunification. The Court of Appeals concluded that a decision as to permanency must be documented according to the Adoption and Family Safety Act of 1997 (ASFA) which requires Cabinet to file a TPR action if a child has been in foster care for 15 out of the most recent 22 months unless – among other reasons –  a state agency has documented in the case plan a compelling reason for determining that filing such a petition would not be in the best interest of the child. 42 U.S.C. 675(5)(E)(ii). Cabinet’s own administrative guidelines reiterates in 922 KAR 1:140, Section6(2) that Cabinet must document why termination is no longer in the child’s best interest and request an exception. The Court of Appeals admonished the Family Court for allowing Cabinet to act inconsistently with the law.

The Court of Appeals acknowledged that without a mechanism to appeal, Cousins felt their only choice was to move for ex parte emergency custody in the custody action, prompting Cabinet to file their own ex parte emergency motion to return Child to cabinet custody. However, Cabinet did not elaborate on what the substantial risk to Child was, and thus, the Family Court did not appropriately utilize KRS 620.060, which authorizes the use of emergency custody orders when the custodian is unwilling or unable to protect the child, it is in the child’s best interest and if the child is in serious danger of physical or sexual abuse or imminent death, the parent has repeatedly inflicted or allow to be inflicted physical or emotional injury, or the child is in immediate danger due to the parent’s refusal or failure to provide for the safety or needs of the child. None of the grounds listed by Cabinet in its motion warranted the relief it sought.

Finally, the Court of Appeals held that the Family Court’s final error was in awarding full custody of Child to Mother in the DNA action with no findings of fact or conclusions of law that doing so was in Child’s best interest, choosing instead to focus heavily on Mother’s improvement on her case plan and the court’s frustrations with Cousins. Worse, the Family Court awarded custody of Child to Mother will full knowledge of this pending original action and in contravention of the Court of Appeals order temporarily awarding custody to Cousins while the action was pending, despite acknowledging that the ruling would cause a bigger mess still, believing that it had original and continuous jurisdiction in the DNA action to make such an order.

The Court of Appeals stated that the erroneous actions of parties, counsel, and the Family Court illustrated why correction was necessary and appropriate for the orderly administration of justice. The Family Court believed that it was the only court that could make custody determinations regarding Child. However, pursuant to KRS 199.470(1), adoption petitions must be filed in the county where the petitioner resides; in this case, in Breckinridge County where Cousins reside. Ideally, only one county will hear all matters regarding one child, but in this case, transferring the DNA and TPR cases to Breckenridge would make little sense since Breckinridge County lacks a family court. Thus, though the separate actions in separate counties are proper, the parties have shown that when one court makes a decision it disagrees with, the other court may make an alternate decision. This is not beneficial for the administration of justice and more importantly, such action is not in line with Child’s best interests.

Finally, the Court of Appeals held that a writ is appropriate because Cousins have no adequate remedy by appeal: no appeal was possible on their behalf in the TPR action because the Family Court never ruled on their motions to intervene; Cousins are not parties to the DNA action and thus cannot appeal from orders entered therein by the Family Court; Cousins were not aggrieved by the Breckenridge Circuit Court’s orders and thus cannot appeal because they are temporary custody orders and are as such, unappealable.

The Court denied Cousins’ request as to the adoption issue as moot because the Family Court never had jurisdiction over the adoption. However, Cousins’ request was granted to the extent that the Breckinridge Circuit Court shall make all further determinations regarding custody of Child in the civil custody action, unless it determines Cousins lacked standing to bring that action and it is dismissed. If the custody action is dismissed, then all custody decisions shall be made by the Breckinridge Circuit Court in the adoption action. If the adoption action is dismissed, then the Family Court may resume making custody determinations.

The Court further ordered that the Family Court DNA action was stayed pending a ruling by the Breckinridge Circuit Court on whether Cousins have standing to bring the custody and adoption actions. Cousins’ request for an order granting them temporary custody Child was granted, but their request to estop Cabinet from any activities inconsistent with the permanency goal of adoption was denied.

Carter Anderson

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The Family Court found Wife was cohabitating, summarily terminated Husband’s maintenance obligation upon a finding of cohabitation without determining whether continued maintenance was unconscionable pursuant to KRS 403.250, and retroactively terminated Husband’s obligation effective to the filing of the motion requesting termination, thus requiring Wife to reimburse Husband over $100,000. Wife first filed a motion to Alter, Amend, or Vacate, which was denied by the Family Court. She then filed this appeal.

The Court of Appeals vacated the family court order, holding that it failed to apply an appropriate definition of cohabitation and make appropriate findings, it erred in concluding the automatic termination clause in the decree was enforceable in the same way it would be were it part of a separation agreement, and it erred in failing to consider the controlling provisions of KRS 403.250(1) as interpreted by Combs v. Combs, 787 S.W.2d 260(Ky. 1990), to determine if such cohabitation resulted in continued maintenance being unconscionable.

Specifically, the Court of Appeals stated that the clause for termination upon cohabitation was not the result of a negotiated settlement between the parties and thus, to avoid running afoul of KRS 403.250, the Family Court first should have determined whether Wife and Boyfriend were cohabitating using a specified definition, and then whether that cohabitation rendered continued maintenance unconscionable because it constituted a new financial resource as contemplated by KRS 403.200(2)(a). Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990).

The Court vacated and remanded with instructions for the Family Court to: 1) consider and state what definition of cohabitation should apply; 2) determine if such cohabitation occurred; 3) if cohabitation occurred, then evaluate the unconscionability provisions of KRS 403.250(1) to determine whether it would be unconscionable for Wife to continue to receive previously awarded maintenance. The third step necessary due to the imposition of the maintenance clause by the Family Court via its divorce decree rather than contained in the parties’ settlement agreement as a negotiated term.

The Court also vacated the Family Court’s order as to the retroactive termination to the date of Husband’s motion, stating that although trial courts have the discretion to decide whether orders modifying maintenance should be paid retroactively, such a decision should align with equity and fairness. The Court instructed the Family Court to consider the relevant facts and circumstances, such as Wife’s financial status and the reason for the lengthy delay in the Family Court’s issuance of a ruling, before deciding whether it is equitable for the termination to be made retroactive. 

Carter Anderson

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Relatives filed custody and adoption actions related to their 3-year-old cousin, S.M.H., in Breckinridge Circuit Court. S.M.H. had been in the custody of the Cabinet nearly all her life, after she was born and tested positive for illicit substances and Hepatitis C in November 2019. One year after her birth, the Cabinet filed a DNA petition in Jefferson Family Court, which remains active and pending. In June 2022, Relatives filed a petition for adoption in Breckinridge Circuit Court, and in July 2022, Relatives filed a petition for custody in Breckinridge Circuit Court. The Cabinet filed motions to dismiss arguing Breckinridge Circuit Court lacked particular case jurisdiction and that Relatives lacked standing to bring the lawsuits. The motions were scheduled for hearing on November 28, 2022.

The Cabinet filed for a writ of prohibition and a motion for immediate relief on September 6, 2022. Immediate relief was denied for lack of irreparable injury warranting extraordinary relief resulting from the Circuit Court’s conducting a hearing, and a three-judge panel was appointed for consideration on the merits.

The Cabinet argued that it was entitled to a writ because the Circuit Court was acting or about to act erroneously, there was no adequate remedy by appeal, and the Cabinet would suffer irreparable harm if the hearing was held in the Circuit Court.

The Court of Appeals denied the Cabinet’s writ of prohibition because the Cabinet had an adequate remedy by appeal. A hearing would be conducted in the Circuit Court to determine the merit of the Cabinet’s motions to dismiss the custody and adoption actions. The Court of Appeals stated that such a hearing is itself a forum in which the Cabinet could prove to the Circuit Court that the underlying actions should be dismissed. After the entry of a final order in the case, the Cabinet could then file a direct appeal.

Carter Anderson

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