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.

The post Kentucky Court of Appeals Affirms Fayette Family Court Orders Finding Mother’s Choice in Schools Outside the Residential County to be Unreasonable and Awarding Attorney’s Fees appeared first on Goldberg Simpson - Family Law Group.

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.

The post Kentucky Supreme Court Reverses and Remands Order Holding Non-Party Responsible for Attorney’s Fees Due to Non-Compliance with Subpoena appeared first on Goldberg Simpson - Family Law Group.

Warren County

Parties were divorced in 2012. The parties shared joint custody of their two (2) minor children with Mother being the primary residential parent and Father exercising prescribed parenting time.  

In 2020, the parties filed cross motions to modify the parenting schedule. Father’s motion requested that the prior parenting schedule be enforced and modified to a 50/50 schedule. Mother’s motion requested a modification of the parenting schedule to reduce Father’s parenting time and requested the entry of co-parenting guidelines and an order for co-parenting counseling. The circuit court ordered the parties to submit to a psychological evaluation. Mother complied but Father did not.

The circuit court held a hearing on both parties’ motions to modify the parenting schedule in February of 2021. The children’s therapist testified at the hearing, but Father was unable to fully cross-examine the therapist due to time constraints. The circuit court entered an order in March of 2021 ordering that upon Father’s agreement to follow the therapist’s recommendations temporarily, pending the conclusive portion of the hearing, Father was to have parenting time with the oldest child in a therapeutic setting only and with the youngest child at the discretion of the therapist, with supervision.

The conclusive portion of the February 2021 hearing was held in February of 2022. Father filed a motion in the interim requesting supervision be lifted due to the length of time between the hearings. Father also filed an emergency motion to dismiss the March 2021 order arguing that the order did not change his joint-custody rights. Father objected to the children seeing the therapist due to concerns for alleged professional and ethical misconduct. The court rejected Father’s arguments and ordered that the children continue therapy with the therapist at issue.

At the February 2022 hearing, the therapist again testified. The therapist specifically expressed concern over the correlation between the older child learning of Father’s request for unsupervised parenting time and the child’s subsequent suicide attempt. The therapist also testified to her concerns with Father’s behavior in therapy sessions.

Following the hearing, the circuit court entered an order suspending Father’s parenting time and all family therapy between the children and Father for a minimum of 3 months to allow Father to participate in individual therapy. The circuit court also entered an order holding Father financially responsible for the therapist’s court appearance at the February of 2022 hearing, due in part to Mother having paid for the therapist’s appearance at the February 2021 hearing. Finally, the circuit court denied Father’s motion for unsupervised visitation/time-sharing for not being in the children’s best interest. Father filed a motion to vacate, which was denied. Father then obtained counsel and appealed.

Father’s appeal contended that the circuit court committed reversible error in (1) not scheduling a hearing on his motion to vacate; (2) suspending his visitation for at least 3 months without finding that visitation would seriously endanger the children; and (3) holding him financially responsible for the therapists February 2022 court appearance.

The Court of Appeals determined that it did not have jurisdiction to remedy the circuit court’s decision to deny Father’s motion to vacate without a hearing due to it being interlocutory in nature.

Although Father’s appeal contends that the circuit court erred in ordering him to be financially responsible for the therapist’s court appearance, the Court of Appeals found that Father had not preserved the issue simply by filing a motion to vacate at the circuit court level. Father’s failure to properly preserve the issue limited its ability to review the issue and the standard of review to be employed. Although Father did not request palpable error review, the Court of Appeals found that the circuit court committed no palpable error in ordering Father to pay the therapists costs associated with the hearing and found that Father was not entitled to relief on the unpreserved issue.

The Court of Appeals reviewed the trial court’s suspension of Father’s visitation and order for individual therapy under an abuse of discretion standard.

Modification of parenting time is governed by Kentucky Revised Statute (hereinafter “KRS”) 403.320. It is well settled Kentucky law that visitation should not be entirely denied without a finding that visitation would result in serious endangerment of the child.

In this case, although the circuit court’s order is referred to as a modification of parenting time, the substance of the order must be examined rather than the form. The order functioned as an outright denial of all visitations for 3 months and placed conditions on Father’s ability to regain parenting time, which the Court of Appeals found to be an order denying all visitation, even if only temporarily. Without a finding of serious endangerment, the circuit court improperly denied Father’s visitation. The Court of Appeals found that while the circuit court did make factual findings as to why it reached its conclusion, it did fail to include the required conclusions of law required by KRS 403.320, thus warranting the vacation of such an order. The Court of Appeals noted that on remand the circuit court may properly enter an order with the same restrictions only if it determines that visits would seriously endanger the children.

The Court of Appeals affirmed the circuit court’s order for Father to participate in individual therapy and order denying Father’s request for unsupervised parenting time, while vacating the circuit court’s outright denial of Father’s parenting time and remanding the case for additional findings under KRS 403.320.  

Kendall Box

The post Kentucky Court of Appeals Vacates and Remands Order Denying Father Visitation Due to Failure of Warren Circuit Court to Find that Visitation Would Result in Serious Endangerment of the Children Pursuant to KRS 403.320 appeared first on Goldberg Simpson - Family Law Group.

Kentucky Supreme Court

Circuit Court found Defendant guilty of violating a Domestic Violence Order and first-degree assault, among other convictions. Defendant appealed, alleging in relevant part that the trial court erred because it allowed testimony via zoom. The Kentucky Supreme Court found that the trial court committed error when it permitted a witness to testify via zoom in violation of Defendant’s right to confrontation afforded by the 6^th Amendment of the U.S. Constitution, and that the error required reversal of the conviction of assault.

Defendant argued that permitting a witness to testify viz zoom violated his rights under the Confrontation Clause of the 6^th Amendment of the United States Constitution. On the morning of trial, the Commonwealth informed the court and Defendant’s attorney that the Commonwealth’s expert would have to testify via zoom as he was scheduled to work at the hospital that day. The witness’s testimony was crucial in proving an essential element of the assault charge.

Defendant objected.

The Sixth amendment guarantees the accused in all criminal proceedings the right to be “confronted with the witnesses against him.” The primary purpose of which is to compel the witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

In Maryland v. Craig, 497 U.S. 836 (1990), the U.S. Supreme Court held that a defendant’s right of confrontation is not absolute and that it might be outweighed upon an adequate showing of necessity on a case specific basis. (holding that a state’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in come cases, a defendant’s right to face his or her accusers in court). In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court rejected the balancing test holding that the 6^th Amendment does not express a preference for face-to-face confrontation, but “it commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Although contradicted, Crawford did not overrule Craig.

Applying Craig, the Kentucky Supreme Court found there was no showing of necessity, other than convenience to the witness, of balancing the victim’s interests that justified the surrender of the Defendant’s constitutional right of confrontation.  

Digested by: Emily T. Cecconi

The post Kentucky Supreme Court Holds Zoom Testimony Violated Defendant’s Sixth Amendment Right of Confrontation Afforded by the U.S. Constitution Without Showing of Necessity appeared first on Goldberg Simpson - Family Law Group.

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

The post Kentucky Supreme Court Reverse Court of Appeals, Remands to Jefferson Circuit Court for Reinstatement of Order Modifying Maintenance Based on Changed Circumstances appeared first on Goldberg Simpson - Family Law Group.

Kentucky Court of Appeals

Warren County

Family Court granted sole custody of child to Mother and no contact with Father due to Father’s failure to comply with substance abuse and mental health treatment. Mother remarried and Stepfather filed a petition to adopt child. Father did not consent. Father appeared without counsel and the Family Court did not tell father he had a right to appointed counsel if he could not afford counsel. The Family Court granted Stepfather’s petition to adopt his stepson because it found Father had failed to provide essential parental care and protection for the child for at least six months, and there was no reasonable expectation of improvement, considering the age of the child.

Father appealed.  The Court of Appeals found that the Family Court “failed to state that its conclusions were made pursuant to the clear and convincing evidence standard”. The Family Courts are typically given a wide discretion, however, this was not a normal appeal of an adoption without the consent of the natural parents because the mandatory standard of proof was not applied. The Family Courts must use the clear and convincing evidence as its standard of proof. The failure by the Warren County Family Court to apply this standard was a fundamental error warranting the Court of Appeals to vacate the Court’s decision. This failure to use the correct standard is so fundamentally wrong that it is not enough for the Family Court to issue new findings, but this error requires a new trial to be held.

Father also raised the issue of the Family Court’s failure to appoint counsel for him. The Court of Appeals briefly addresses this issue by providing guidance to Family Courts. The Family Court did not plainly state to Father that he had a right to have counsel appointed for him if he could not afford to retain one himself. The Court of Appeals encouraged all Family Court to ensure that the parties before them understand their right to counsel, and to state it plainly so that a lay person can understand.

The Court of Appeals notes the importance of counsel doing their due diligence in a case, noting what the Court calls a “blatant misstatement” from Father’s counsel. The Court of Appeals chose to be lenient with counsel, however the Court of Appeals stated they “strongly caution counsel to not make a similar mistake again.”

The post Clear And Convincing Evidence Standard Required in Termination of Parental Rights-Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

U.S. District Court for the Eastern District of Kentucky

Appeal filed on February 23, 2023

Family Court issued a Domestic Violence Order (“DVO”) against Combs after “a hearing of which he received actual notice” and “an opportunity to participate.” The DVO prohibited Combs from “harassing, stalking, or threatening an intimate partner,” and explicitly prohibited “the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury.” A few days after issuance of the DVO, Combs purchased a firearm, indicating on the purchase application he was not subjected to a DVO.

A federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which prohibits a person who is subject to a domestic violence order from receiving or possessing a firearm. Combs filed a motion to dismiss the indictment arguing that 18 U.S.C. § 922(g)(8) was unconstitutional as it failed to meet the Second Amendment test set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).

The Bruen opinion reinforced a “text and history” approach to the Second Amendment, holding that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “to justify [the second amendment’s] regulation, the government…must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

First, the United States argued that the Supreme Court has limited the Second Amendment to law-abiding, responsible citizens. The District Court noted, however, that other courts have declined to read into the amendment a qualification that its rights only belong to law-aiding citizens, finding that a plain reading of the amendment covers all persons under the constitution. Thus, the District Court held that a plain reading of the Constitution protected Combs’ right to possess a firearm, even assuming that he was not a law-abiding, responsible citizen.

Second, the United States argued that surety statutes, which required certain individuals to post bond before carrying weapons in public, and historical laws disarming “dangerous people” provide a sufficient historical analogue to satisfy Bruen’s second amendment test. The United States argued that both surety laws and U.S.C. § 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime, and, therefore, have a similar social purpose. Combs argued that surety laws were insufficiently analogous the federal law, and the District Court agreed. The District Court held that U.S.C. § 922(g)(8)’s complete deprivation of an individual’s ability to possess a firearm was materially different than a sureties’ possible disarmament, if violated, and was therefore unconstitutional.

Digested by: Emily T. Cecconi

The post Federal Law Prohibiting Individuals Subject to Domestic Violence Order from Receiving or Possessing Firearms Held Unconstitutional by U.S. District Court appeared first on Goldberg Simpson - Family Law Group.

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

The post <strong>Kentucky Court of Appeals Affirms Barren Family Court Order Holding Cabinet in Contempt After it Fails to Return Child to North Dakota</strong> appeared first on Goldberg Simpson - Family Law Group.

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

The post <strong>Kentucky Court of Appeals reverses Marion Circuit Court, holds that tax credit for child goes to parent with higher adjusted gross income if parents are joint custodians with equal timesharing</strong> appeared first on Goldberg Simpson - Family Law Group.

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

The post <strong>Kentucky Court of Appeals reverses Allen Family Court, vacates IPO extension based on insufficient written findings to support evidence of stalking by Respondent</strong> appeared first on Goldberg Simpson - Family Law Group.