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.

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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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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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Think of motion hour as a mechanism for taking care of the weekly business so that divorce, legal separation, child custody, and support cases keep moving forward.

Motions generally have to be filed (and served on the other party or lawyer) on the Tuesday prior to the next motion hour.

Family court judges generally do not conduct full hearings at motion hour. Instead, short argument may be permitted and then the court will decide whether to schedule a separate hearing, grant the motion, deny the motion, or take some other action.

Be sure to consult with your divorce attorney about the specifics of motion hour in your case.

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The mediator’s role is collaborative, not adversarial. He or she is present to help the parties by promoting constructive dialogue. The lawyers are present to help the parties achieve realistic goals. The clients are present to negotiate in good faith. This includes a duty to take reasonable positions that may be justified with exhibits and/or other information. The clients may feel free to bring someone to mediation for moral support. The clients, their attorneys and the mediator shall conduct themselves courteously. This includes a duty to listen to other points of view for the purpose of understanding that point of view and to repeat what has been said for clarification.

Mediators generally have the parties and their attorneys sign a mediation agreement prior to the negotiation process. The mediator is usually paid a set fee that is divided between the parties at the conclusion of the session. The mediation process can be a less expensive and more efficient way to resolve disputes than allowing the litigation process play out in family court.

The mediator usually begins a session by speaking with all the participants together. Thereafter, he may conduct mediation face to face or suggest that opposing parties and their attorneys retire to separate rooms. The mediator can then move from room to room to meet privately with each party and his or her attorney. Clients should speak freely and honestly to the mediator and may take comfort in knowing that the mediator will keep confidential that which he instructed not to disclose.

Mediation is generally dictated by the local rules of Court, such as in Jefferson Family Court in Louisville, Kentucky. What transpires in mediation is not admissible as evidence in the courtroom. The only exceptions to the rule of confidentiality are the obligations imposed on the mediator to report abuse as required by KRS 209.030 and KRS 620.030. Except for private sessions with the parties and their attorneys during the mediation process the mediator shall not communicate ex parte with the Court, the parties or their attorneys.Mediation may not be appropriate or ordered in certain cases, such as where there has been domestic violence (EPO or DVO) between the parties. Parties should not confuse this process with therapy or counseling.

The mediator, either party, or their respective counsel may request at any time, without prejudice, that mediation stop. Likewise, future mediation sessions may be scheduled by mutual agreement of the parties, their attorneys and the mediator. The mediator shall report the results of mediation without comment to the Court and the Family Court Administrator.

Our family law attorneys at Goldberg Simpson are experienced in guiding you through the issues of divorce, legal separation, child custody, or support and maintenance issues.

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Guardianship is a term that is commonly used, but generally misunderstood.

Guardianship and custody are NOT the same from a legal perspective. Parents have a superior right to custody, and have a higher level of rights than what guardianship provides.

Guardianship may be used if both parents are killed in an accident or otherwise predecease their child(ren). It is possible for a third party to have guardianship of a minor child (under 18 years of age) even if one or both of the child’s parents are alive. Those situations may include:

• To qualify for health insurance coverage;
• For consent to medical treatment or decisions about education and school;
• To accept an inheritance;
• To receive money from a lawsuit settlement.

Guardianships are sometimes the only avenue for parents of adult disabled children to keep tabs on their children. Limited guardianships are also permitted by Kentucky law.

Responsibilities & Duties

A guardian or limited guardian may be responsible for the care and control of the minor child, and/or managing the child’s finances. The guardian must file inventories with the Court to account for actions being taken on behalf of the child. Generally those are filed within sixty (60) days of appointment, and then every one to two years thereafter depending on what property the child owns.

Filing For Guardianship

Any interested person may file for guardianship over a minor child with the District Court. Once the petition is filed and the filing fee paid, a hearing date will generally be scheduled by the Court. The person requesting the appointment as guardian must be present at the court hearing. If the minor is 14 years old or older, the minor must also be present.

Interested in filing for guardianship but don’t know where to get started? Visit Our Attorneys page to learn more.

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We will be moving from our current downtown location to the law offices of in Norton Commons as of October 1, 2021. All of our lawyers are making the move as well as all of our support staff so you will be working with the same team as usual. We are looking forward to having other legal specialists in house for ancillary matters that our clients often need, such as estate planning, elder law, real estate, corporate, bankruptcy, tax,  and general civil litigation.

Our telephone number will remain the same and the new address effective October 1, 2021 will be Goldberg Simpson, LLC, Norton Commons, 9301 Dayflower Street, Prospect, KY 40059.

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In the recent case of Tucker v. Tucker, the Kentucky Court of Appeals addressed this very issue.  In that case, a wife had a child just a few months after her marriage to the husband.  A few years later, the parties started divorce proceedings and a child support case was initiated.  Despite being listed as the father on the child’s birth certificate, DNA testing proved that the husband was not the child’s biological father.  Even after the parties’ divorce, the stepfather remained very close with the child.  They continued to call one another “father” and “son,” stayed in regular contact, and the husband provided financial support for the child.  At no point did the stepfather adopt the child.  The child claimed that he did not learn the truth about the paternity issue until after he reached adulthood, but even after discovering this information, he continued to call the man “father.”  When the stepfather died without a will (under the law, this is called “intestacy”) years later, the child attempted to pursue a share of the inheritance from the stepfather’s estate.

The child argued that despite the lack of a biological link between the two, the stepfather should be considered the child’s actual father for purposes of inheritance.  The child argued that because they maintained such a tight bond, the stepfather was on the child’s birth certificate, and because he was born during the parties’ marriage, he should still be entitled to a share of the estate.  The administrator of the estate disagreed due to the results of the DNA test.

Kentucky law is clear that a child born during a lawful marriage or within ten months of the divorce of the parties is presumed to be the child of the husband.  The key language here is that this is merely a presumption, meaning it can be refuted by other evidence.  This most commonly comes in the form of a DNA test done in the contest of a paternity case brought for child support purposes.

In this case, the determination that the stepfather was not the child’s biological father established that fact for any and all future purposes, including when an individual dies without a will.  Simply put, the results of a paternity test will dictate the outcome of any future legal matter that depends on paternity.  The Court of Appeals was very clear that in order to inherit, the child would have needed to be adopted by the stepfather.  The procedures for this are very complicated and must be followed to the last detail for it to be valid.  Since an adoption did not occur, the Court ruled that the child was not entitled to a share of the stepfather’s estate.

Issues like this can be avoided.  In any situation where there is any doubt whatsoever as to the identity of a child’s father, it is important to seek legal advice.  The attorneys at Goldberg Simpson, LLC can advise you as to the impact on child support and related matters when it comes to having paternity established via DNA testing.  We can also discuss with you how an adoption works and the impact it would have on your family.  Finally, we can explain how family law intersects with estate planning and probate law so that you can make the best decisions for the wellbeing of your loved ones.

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First, KRS 403.170 prevents a Court from issuing a decree of dissolution “until  the  parties  have lived  apart  for  60  days.” Even if you are still living under the same roof, you may be considered separated for the purposes of this statute.  

Second, if you have minor children KRS 403.044 prevents the Court from hearing matters other than testimony on temporary motions until “sixty (60) days have  elapsed  from  the  date  of  service  of  summons,  the  appointment  of  a  warning  order attorney or the filing of an entry of appearance or a responsive pleading by the defendant, whichever occurs first.” If you have come to an agreement resolving all issues in your divorce, including custody and parenting time, very quickly this “waiting period” might come into play. Thus, the KRS 403.044 prevents a Court from issuing a decree of dissolution until 60 days have elapsed from the date the response to the petition was filed or date of service of a summons.

There are certain time restrictions on the divorce process in the Commonwealth of Kentucky. If you are interested in learning more about how these might impact your specific case, consider consulting with an attorney.

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The general rule in Kentucky is that student loan debt incurred during the marriage is the nonmarital debt of the party receiving the educational benefit associated with the loan, and the debt should be assigned to that party. Combs v. Ousley, 2007-CA-001552-MR, 2009 WL 276506, *3 (Ky. App. Feb. 6, 2009). To the extent that the proceeds of the loan were used to provide for family expenses, however, some portion of the debt may be marital debt. This is a fact-intensive inquiry, and it is important to discuss your unique circumstances with an experienced family law attorney.

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