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

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

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

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

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

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

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

Digested by: Kendall Box, Esq.

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Barren Circuit Court

Questions Presented: Appellate Procedure. Children as Indispensable Parties in an Appeal from a Termination of Parental Rights. Notice to the Guardian Ad Litem. The issue is whether children are indispensable parties on appeal in a termination of parental rights case or whether notice to the guardian ad litem is sufficient to protect the children’s interest on appeal.

The issue in this case is whether there is substantial compliance with CR 73.03, which requires that a notice of appeal specify by name all appellants and appellees, where, although the children of the termination of parental rights case were not named as parties, the guardian ad litem received adequate notice of the appeal. The Supreme Court of Kentucky held that service of the notice of appeal upon a child’s guardian ad litem is sufficient to provide adequate notice to the child and to confer jurisdiction over that child to an appellate court. 73.02 only requires dismissal of an appeal if a party fails to timely file a notice of appeal, cross-appeal, or motion for discretionary review. Failure to comply with other rules relating to appeals or motions for discretionary review permit other sanctions up to and including dismissal of the appeal. The sanction imposed should bear some resemblance to the seriousness of the defect. Dismissal is not a proper remedy when no substantial harm or prejudice has resulted from the defect. The statutorily mandated appointment of a guardian ad litem for children at issue in a termination proceeding sufficiently protects their interests, as long as the guardian ad litem is served with the notice of appeal.

Digested by Nathan R. Hardymon

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Family court dissolved the marriage of Husband and Wife with three children after a DRC recommendation and evidentiary hearing. Each party filed exceptions to the DRC report, the Court sustained one and overruled the rest. Wife raised several issues on appeal.

First, Wife argues that the DRC improperly adopted the findings and conclusions tendered by Husband. The Court of Appeals disagrees as the Supreme Court allows use of tendered findings and conclusions, as long as the Court does not abdicate “their responsibility to make required findings of fact and conclusions of law in this case.” In this case, a property evidentiary hearing was held, and the family court properly subjected the DRC findings to full review granting exceptions when necessary after review of the record.

Second, Wife next argues that the family court failed to “consider claims of domestic violence and neglect in granting of joint split physical custody of the Children.” The Court of Appeals again disagrees finding the family court properly considered all relevant evidence.

Next, Wife argues that the family court “erred by failing to order the parties to share the cost of child care in proportion to their respective incomes.” Again, the Court of Appeals disagrees holding that in cases that deviate from the Kentucky Child Support Guidelines “the trial court also has the discretion to deviate from a proportionate division of child care expenses.”

Fourth, Wife argues the family court erred in awarding the children-related tax exemption to Husband although Wife has more parenting time. The Court of Appeals agrees holding that the family court failed to “meet the [Adams-Smyrichinksy] ‘heavy burden’ to justify why the assignment of the exemption to [Husband] inures to the children’s benefit.”

Finally, Wife argues the family court abused its discretion in awarding Husband both marital vehicles. The Court of Appeals agrees holding that the family court’s findings do not specify how the award constitutes a “just division of the limited marital property in this case.” Although Wife’s parenting loaned her a car, and she may not use the marital vehicle while the children are young, the assignment of Husband was an abuse of discretion.

Digested by Elizabeth M. Howell

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After dissolution of marriage proceeding, Wife appealed on four issues. The Court of Appeals begins with a lengthy discussion of substantial compliance because Wife failed to follow the Civil Rules.

First, Wife argues that “the visitation schedule is improper and should be set aside.” As she did not advance a substantive argument on this issue, the Court of Appeals does not address it pursuant to its holding in Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979).

Second, Wife argues that the family court erred in classifying three parcels of real estate as nonmarital.

Third, Wife argues that the family court’s division of personal property was inequitable. Again the Court of Appeals does not address these issues this time because Wife failed to preserve them for appeal and failed to cite underlying authority.

Fourth, Wife argues that “the trial court erred in awarding [Husband] a nonmarital interest in another parcel of real estate.” The Court of Appeals briefly addresses this issue affirming the family court holding adequate tracing was admitted into evidence.

Digested by Elizabeth M. Howell

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BAAS V. BAAS

Husband and Wife entered into a bullet-pointed informal mediated agreement. Wife signed based on the mediators representations that a tax credit Wife would receive in the agreement offset the difference in Wife’s valuation and Husband’s valuation of his businesses. When Husband’s attorney put together a formal agreement, Wife refused to sign as “the mediator’s assurances regarding the value of the tax exemption were not accurate, and that the separation agreement addressed issues not previously discussed or agreed upon.” Husband motioned the Family Court to enforce the mediated agreement. After the hearing, the Family Court granted Husband’s motion and “ordered the mediated agreement incorporated by reference into the decree.”

Wife appealed arguing the mediated agreement was unenforceable either because “the misconduct of her attorney rendered the result of mediation unconscionable” or because “her reliance on inaccurate material representations by the mediator limited her ability to assent to the terms of the agreement.”

The Court of Appeals starts by recognizing the well-settled contract rule that “absent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read it, will be enforced according to its terms,” going on to note the exception that “A reviewing court may set aside a settlement agreement if the agreement is manifestly unfair or unreasonable.”

Looking to Wife’s argument about the absence of her counsel,even though the lawyer later returned, the Court of Appeals holds that the Mediator should have stopped the mediation when Wife’s attorney left. Just like a court proceeding, mediation is effectively over when Counsel is no longer present. The absence of Wife’s attorney rendered the contract unenforceable.

Next the Court of Appeals looks to the conduct of the Mediator holding that the “misconduct of the mediator prevented the parties from reaching a true and voluntary meeting of the minds.” The Court of Appeals is very concerned with the mediator’s conduct, especially the legal advice to Wife

regarding the value of the income tax exemption, ultimately holding: “… in quasi-judicial proceedings like court ordered mediation, the third party

neutral must observe and abide by the Kentucky Supreme Court Rules(“SCR”) regarding professional responsibility for lawyers (SCR 3.130 et seq.), the Kentucky Code of Judicial Conduct (SCR 4.300 et seq.), the applicable provisions of the Kentucky Rules of Civil Procedure (“CR”), and the Kentucky Family Court

Rules of Procedure and Practice (“FCRPP”).”

Thus, as the mediator in this case violated the professional standards, Wife “lacked any real opportunity to effectively negotiate a bargain at all.” The Court of Appeals concludes that the Family Court’s order enforcing the agreement must be set-aside and reexamined in light of their ruling. While the bullet point agreement “satisfied KRS 403.180… the underlying process by which it was obtained was improper.”

Digested by Elizabeth M. Howell

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Girlfriend obtained a DVO against boyfriend which the family court later renewed. In the order renewing the court failed to check the box prohibiting firearm ownership. The family court later fixed the clerical error checking the box prohibiting firearms.

Boyfriend appealed arguing that the court “improperly entered a DVO instead of an IPO” and that the court violated CR 59.04 and CR 59.05 by adding the firearm prohibition more than ten days after the order was entered. The Court of Appeals affirms the family court holding that the family court properly added the firearm prohibition under CR 60.01 which allows a court to amend or correct a clerical mistake. Additionally, there was sufficient proof the parties “lived together to support the court’s finding that the two were an ‘unmarried couple’ under KRS 403.725” thus a DVO and not an IPO was appropriate.

Boyfriend contended that the court would not have had the authority to prohibit firearm possession under an IPO, but the Court of Appeals does not reach that question as the DVO was appropriate.

Digested by Elizabeth M. Howell

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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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Kentucky courts continue to hold that court-appointed custodial evaluators are entitled to quasi-judicial immunity.

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Trial court granted Father primary custody after a hearing. The trial court made findings including that mother moved frequently causing the child to change schools four times in one academic year. Mother appealed arguing the trial court “ improperly considered her personal life” and failed to make the factual findings required by KRS 403.270(2). The Court of Appeals disagreed noting “Mother failed to request specific findings pursuant to CR 52.04” and holding that there was “more than sufficient evidence” to support the trial court’s findings.

Digested by Elizabeth M. Howell

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Trial Court held a bifurcated DVO hearing on a severe domestic violence incident between Husband and Wife. At the first hearing, Wife testified she was afraid of Husband and gave detailed testimony about the violent incident. After contact with Husband’s family, at the second hearing, Wife read a statement asking the Trial Court to dismiss the matter. The Trial Court issued a DVO against husband. Husband appealed arguing that “the trial court abused its discretion when it failed to grant appellee’s  [Wife’s] motion to voluntarily dismiss the DVO.”

The rules for dismissal are set forth in CR 41.01. Automatic dismissal shall be granted when the Petitioner files “a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs” or files “a stipulation of dismissal signed by all parties who have appeared in the action.” CR 41.01(1) The Court of Appeals holds that this case did not fall under CR 41.01(1), because Wife never filed anything, she simply read a statement into the record.

CR 41.01(2) allows dismissal at the discretion of the trial court. Factors the Trial Court should consider before granting the dismissal are set forth in the Supreme Court case of Sublett v. Hall. Sublett v. Hall, 589 S.W.2d 888 (Ky. 1979). Holding that domestic violence cases “involve different considerations than general civil cases” the Court of Appeals held that is was proper for the Trial Court to consider factors outside of those listed in Sublett. Thus, the Trial Court did not abuse its discretion by  denying Wife’s motion to dismiss the action noting that the Trial Court found Wife had contact with Husband’s family which “dramatically changed” her position.

Husband also argues that the Trial Court erred “when it found sufficient evidence in the record that domestic violence ‘may again occur’ under KRS403.740(1).” The Court of Appeals first reiterates that “a singular act is never sufficient to support a finding that domestic violence may recur without some additional indication, however small, that domestic violence may recur,” but ultimately holds that the Trial Court did not err in finding sufficient evidence domestic violence might occur again given the severity of the underlying event, as well as fact that the parties lived together, and Husband’s failure to obtain treatment for substance abuse.

Digested by Elizabeth M. Howell

The post Not Error To Fail To Dismiss Domestic Violence Action Upon Victim’s Request: Ky Court of Appeals Published Opinion September 30, 2016 appeared first on Goldberg Simpson - Family Law Group.