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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No. 2021-CA-0580-ME

Boyd County Circuit Court

The Cabinet for Health and Family Services (“CHFS”) appealed an order granting custody of a minor child to Grandmother and Uncle of the minor child due to the family members lacking standing to pursue such custody order.  The Kentucky Court of Appeals reversed and remanded the matter with instructions that the custody order issued by the circuit court is voidable, suggesting the family members’ petition for custody be dismissed.

Mother gave birth to twins born addicted to drugs.  Father only visited the twins once in the hospital, where he had an individual take a photo of him with the twins.  Notably, Father did not share this photo with his own mother for more than half a year later.  His mother (Grandmother of twins) shared the photo with Father’s half-brother (Uncle of twins).  CHFS inevitably became involved in the case very early due to the twins’ addiction to drugs and their subsequent month-long stay in the neonatal intensive care unit.  After CHFS quickly transferred the case from Lawrence County to Boyd County, Kentucky, CHFS petitioned the Boyd County District Court for a dependency, neglect, and abuse (“DNA”) action and was awarded emergency custody of the twins.  Both twins were placed with a foster family. 

At the adjudication hearing, the district court found neglect against the parents due to abandonment.  CHFS prepared a dispositional report that the permanency goal was reunification with the biological parents, if feasible.  However, the district court disposition order recommended termination of parental rights and adoption for the twins due to the parents’ abandonment. Importantly, neither Mother nor Father made recommendations to CHFS for suitable family members that may be willing to take temporary custody of the twins during the pendency of these proceedings. 

CHFS was notified by an Ohio child protective services worker that their organization was working with Mother and Father to place another one of their children with Grandmother and Uncle in Michigan.  CHFS was not provided with any contact information for Grandmother and Uncle.  At that time, CHFS conducted a search for relatives of the twins, which was supposed to have been completed at the outset of the case.  This search did not identify Grandmother and Uncle, so they were not contacted regarding the twins.

Shortly thereafter, CHFS initiated a termination of parental rights action against Mother and Father due to their arrests for trafficking fentanyl in Ohio.  Following the parents’ arrests, Grandmother and Uncle began contacting CHFS to pursue custody of the twins. The DNA matter continued as usual with the permanency goal of termination of parental rights, ultimately leading to adoption for the twins by, presumably, the foster family. 

Grandmother and Uncle retained counsel and petitioned the Boyd County Circuit Court for custody of the twins.  The guardian ad litem (“GAL”) for the twins and the parents recommended placement of the twins with Grandmother and Uncle; however, CHFS challenged standing for the custody petition.  The circuit court recommended Grandmother and Uncle’s petition for custody of the twins be granted.  CHFS filed exceptions following this decision.  The circuit court issued written findings imposing its decision that Grandmother and Uncle had standing due to CHFS’ failure to follow protocol, citing sua sponte that there was an equitable estoppel argument that defeats CHFS’ lack-of-standing defense.  Following, the district court, by the circuit court issuing a custody order, struck the DNA cases from the docket.

CHFS appealed the circuit court’s order that Grandmother and Uncle have standing to petition for custody of the twins.

The circuit court primarily utilized a Kentucky Supreme Court case, Baker v. Webb, to support its decision.  The Court of Appeals determined the circuit court incorrectly applied the case to the present facts, noting that “because standing and intervention are two distinct concepts, Baker is distinguishable on its face.”  The Court explained the facts presented in Baker differ from the facts presented in this case due to the timing of the family members’ involvement (i.e., whether there was a present or a past interest).  The Court clarified that Grandmother and Uncle’s “interest under KRS 620.090(2), if it ever existed, lapsed before they filed their petition in circuit court,” and that the parties “were not known to the Cabinet until long after the order of temporary custody was replaced by the order of commitment entered at the dispositional hearing.”  As a result, the Court held that there was not a present interest at hand when Grandmother and Uncle filed their petition for custody of the twins as the twins were not subject to an order of temporary custody under KRS 620.090(1).

As a side, the Court found the circuit court’s sua sponte use of equitable estoppel as a defense to CHFS’ lack-of-standing argument had no basis.  The parties never asserted an equitable estoppel defense, and even if they would have, the Court predicted the parties would not have been successful in their defense.  In support, the Court noted there was not conduct that lends to “misrepresentation or concealment of material facts upon which [Grandmother and Uncle] relied.”  

The Court ultimately held that the Boyd Circuit Court’s order awarding custody of the twins to Grandmother and Uncle be reversed and remanded with instructions to the lower court to dismiss their petition for custody.

Caitlin P. Kidd

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Jefferson Circuit Court

Questions Presented: Interpersonal Protection Orders. KRS 456.030(6). Minors. Capacity. Consideration of whether the jurisdiction of a petition for an interpersonal protection order involving a minor should be in the juvenile division of the district court; also, whether minors have the capacity to represent themselves in the proceeding or whether they may be represented by a parent or legal guardian.

The two issues decided by the Supreme Court of Kentucky in this case were (1) whether the juvenile division of District Court has exclusive jurisdiction over IPO cases involving a minor petitioner and/or respondent; and (2) whether an unrepresented minor that is a petitioner or respondent to an IPO action must be appointed counsel.

The Supreme Court held that the juvenile division of District Court does not have exclusive jurisdiction over IPO cases involving a minor party and that any IPO hearing involving a minor party must be made confidential. KRS 456.030 gives concurrent jurisdiction for IPO cases to the District and Circuit Courts, without exception for cases involving minors. The omission is significant when considering that KRS 456.050 shows that the General Assembly took into consideration that there would be IPO cases involving minors when it made a factor the consideration of whether the parties attend the same school. If the General Assembly wanted to give the juvenile division exclusive jurisdiction, it would have done so. Furthermore, KRS 610.010 giving exclusive jurisdiction to the juvenile division is unconvincing, because IPO cases are not public offenses, which is what is covered by KRS 610.010. However, all IPO hearings involving minors must be made confidential, regardless of whether the case proceeds in District Court or Circuit Court and regardless of whether a confidential hearing is requested by one of the parties.

The Supreme Court held that unrepresented minors to an IPO action must have a GAL appointed to represent them. CR 17.03 requires actions against minors to be defended by the minor’s guardian or committee, and if none are willing to act, the court shall appoint a guardian ad litem. “Guardian” does not mean “parent.” The Court has previously used KRS 387.010’s definition of guardian, which distinguishes between a parent and a guardian. Furthermore, in Rice v. Floyd, 768 S.W.2d 57 (Ky. 1989), the Court stated that “guardian” means a legally appointed guardian. It also notes that an incompetent person cannot be sued and an attorney-in-fact cannot defend an action on behalf of an incompetent. Defense must be completed by a legally appointed guardian or committee. CR 17.03 mandates the appointment of a GAL for an unrepresented minor party to an IPO case.

Digested by Nathan R. Hardymon

The post General Division of District Court Has Jurisdiction to Hear IPO Cases Involving Minors; GAL Must Be Appointed to Represent Minors in IPO Cases – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Jefferson Circuit Court

Biological Father and Mother were in a relationship for approximately ten years but never married. They had two children. The relationship was tumultuous, as Biological Father abused alcohol and was often intoxicated, during which time he was often abusive to Mother, which the Children witnessed. In a custody case in Indiana, the court suspended Biological Father’s previously awarded supervised visitation after he failed to obtain someone to supervise his visitation, noted that Biological Father’s visitation had been suspended for a year, and granted sole custody to Mother.

Mother met Stepfather, and she and the Children moved to Kentucky to live with him in 2016. Mother and Stepfather married in October of 2017. Several months later, Stepfather petitioned for adoption of the Children to which Biological Father did not consent. Biological Father moved to dismiss the action, arguing Indiana had exclusive, continuing jurisdiction from the custody case, which Family Court overruled.

Family Court held a hearing on the petition. Stepfather testified that he was a part of the Children’s lives, provided for them financially, and wanted to adopt them as his own children. Mother testified regarding Biological Father’s alcohol abuse and physical abuse to her, both of which the Children witnessed. As of the time of the hearing, Biological Father had not seen the children in over three years. The Children testified that they considered Stepfather a parent and wished to be adopted by him. They had negative memories of Biological Father, and neither desired to visit with Biological Father. Biological Father testified that he did not abuse alcohol but admitted to having several DUIs. He testified that despite his absence, he had financially supported the Children but later clarified that he did not directly make child support payments but gave his mother access to his bank account for her to assist the Children. He admitted that his absence was because of his failure to follow the Indiana court’s order and had no justifiable excuse for that failure. Finally, Biological Father’s mother testified that Biological Father did not provide her money to pay child support but that she made payments to Mother from her own funds. After the hearing, Family Court, analyzing the involuntary termination of parental rights statute, granted Stepfather’s petition for adoption. Biological Father appealed.

Biological Father argued that Family Court lacked jurisdiction over the petition based on the UCCJEA. The Kentucky Court of Appeals held that the UCCJEA does not apply to adoption proceedings. The UCCJEA applies to child custody determinations, which are orders concerning the “legal custody, physical custody, or visitation with respect to a child”. It expressly excepts adoption proceedings in KRS 403.802. Although adoptions do in effect terminate a parent’s rights, which proceedings are covered by the UCCJEA, that fact does not convert the proceeding into a termination proceeding.

Biological Father argued that Family Court abused its discretion in finding that all the prerequisites to adoption were satisfied. The Court of Appeals disagreed. An adoption without consent involves four distinct considerations: (1) whether the petitioner complied with the jurisdictional requirements for adoptions; (2) whether any of the conditions outlined in KRS 199.502(1) had been established; (3) whether the petitioner is of good moral character, of reputable standing in the community, and of ability to properly maintain and educate the children as required by KRS 199.520(1); and (4) whether the best interest of the children would be promoted by the adoption, and whether the child is suitable for adoption.

Regarding the first consideration, the petitioner must be eighteen and a resident of Kentucky or have resided in Kentucky for 12 months next before filing. The petition must be filed in the county in which the petitioner resides. Stepfather pleaded he was a resident of Kentucky, and he filed the petition in Jefferson County where he lived with Mother and the Children. The children must have resided with the petitioner for at least 90 days prior to the petition. The Children lived continuously with Stepfather and Mother since 2016, well over 90 days.

Regarding the second consideration, KRS 199.502(1) requires a finding of the existence of one of the conditions therein, including, inter alia, that the parent has abandoned the child for a period of not less than 90 days, KRS 199.502(1)(a), and that the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm, KRS 199.502(1)(c). Family Court concluded that Biological Father abandoned the Children for a period well exceeding 90 days, finding that Biological Father had not seen, cared for, or provided support for the Children in several years. Family Court also found that Biological Father emotionally harmed the children by abusing Mother in front of them.

Family Court properly found that Stepfather was of good moral character, of reputable standing in the community, and of ability to properly maintain and educate the children, satisfying the third consideration. Finally, Family Court properly found that adoption was in the Children’s best interest.

Digested by Nathan R. Hardymon

The post UCCJEA Does Not Apply to Adoption Proceedings; Granting of Adoption Petition Affirmed – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Jefferson Circuit Court

Questions Presented: Family Law. Foreign Judgments. Writ of Mandamus. Opinion of the Court affirming the Court of Appeals’ denial of a writ of mandamus against family court judge for failure to dismiss a petition for dissolution of marriage on grounds that the parties were already divorced under the laws of the Kingdom of Jordan. Court held that appellant/real party in interest was not entitled to writ relief of any kind, and specifically held that the family court was not acting outside its jurisdiction by not automatically giving full faith and credit to a divorce decree from a foreign country under the Full Faith and Credit Clause of the United States Constitution. Family court had jurisdiction and discretion to grant comity to the foreign decree, if appropriate in the judgment of the family court.

The parties were married in the Kingdom of Jordan and subsequently moved to Jefferson County, Kentucky. Wife later filed for dissolution of their marriage. Throughout the proceedings, Husband asserted in court documents that the parties were married. However, in his response to the petition for dissolution of marriage, Husband asserted that the parties were divorced by a Jordanian court prior to the filing of the petition when the parties traveled to the Kingdom of Jordan for vacation, where the wife’s participation is not required, and the husband must only state three times that he is divorcing his wife. Husband subsequently filed a “Certificate of Divorce” from the Kingdom of Jordan. Wife asserted that she had no knowledge of the divorce, and that it would have been nullified anyway, because Husband continued to allow Wife to perform “wifely duties” during Idda, the three-month period following a Muslim husband’s proclamation of divorce during which a husband may cancel the divorce by either announcing that he and his wife are married again or by having his wife perform “wifely duties” for him. Furthermore, Husband stated numerous times in court documents that the parties were married. Husband moved to dismiss the petition for dissolution of marriage, which Family Court overruled. Husband later renewed his motion to dismiss, which was also overruled. Husband subsequently petitioned for a writ of mandamus in the Kentucky Court of Appeals, seeking to compel Family Court to dismiss the petition. The Court of Appeals denied the writ. Husband appealed to the Supreme Court of Kentucky.

There are two classes of writs, and Husband was not entitled to a writ under either class. Under the first class, the petitioner must show that the lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through appeal. Husband argued that that there was no adequate remedy by appeal because he would have to wait until the conclusion of the case after spending a large sum of money before having a right of appeal. Kentucky jurisprudence is clear that inconvenience, expense, annoyance, and other undesirable aspects of litigation do not satisfy the requirement to demonstrate great and irreparable injury. This does not demonstrate a lack of adequate remedy on appeal.

Husband argued that Family Court did not have authority to allow the petition to proceed because the parties were already divorced in the Kingdom of Jordan. Assuming that the parties were divorced in the Kingdom of Jordan, Family Court was not required to acknowledge or enforce that decree. The Full Faith and Credit Clause requires that full faith and credit be given “in each State to the public Acts, Records, and judicial Proceedings of every other State.” Thus, it requires a state to honor only the laws and judicial proceedings of a sister state, and Family Court was not required to honor the decree. The decree was entitled only to a consideration of international comity, the recognition which one nation allows within its territory to the legislative, executive, and judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws. Trial courts have discretion whether to afford international comity to a foreign decree. The Court of Appeals addressed the issue, and it was not an abuse of discretion.

Under the second class of writs, the petition must show that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no remedy by appeal or otherwise, and it usually requires a showing that great injustice and irreparable injury will result if the petition is not granted. Husband argued that Family Court acted erroneously because it refused to give full faith and credit to the Jordanian divorce decree, but decrees of a foreign nation are not entitled to full faith and credit. Husband argued that he lacked an adequate remedy by appeal due to the expense of litigation, but the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice. The Court of Appeals correctly addressed the arguments.

Digested by Nathan R. Hardymon

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Jefferson Circuit Court

Questions Presented: Writ of Mandamus. Guardianship. Dissolution of Marriage.  While affirming the denial of a writ of mandamus, the Court overrules Johnson v. Johnson, 170 S.W.2d 889 (Ky. 1943) to the extent it strictly prohibited a guardian from initiating an action for dissolution of marriage on behalf of a ward. Legislative changes to Kentucky’s statutes have expanded guardian duties and the scope of guardianship proceedings in a more complex elder law environment. Accordingly, a guardian may seek permission from the district court overseeing guardianship to initiate a dissolution of marriage action on behalf of the ward, and the district court shall conduct a hearing to determine if such action is in the ward’s best interest.

Husband, who was 76, and Wife, who was 29 and Husband’s deceased wife’s caretaker before death, married after Husband’s deceased wife died. The Cabinet for Health and Family Services’ Adult Protective Services (“APS”) was alerted that Husband may be the victim of elder abuse and began an investigation. APS found Husband to be neglected and in poor physical condition. It sought emergency guardianship. Its subsequent investigation substantiated the allegation of exploitation and identified Wife as the person responsible for the exploitation and neglect. The Jefferson District Court found Husband to be wholly disabled in managing his personal and financial affairs and appointed APS as an emergency guardian with the powers and duties of both a guardian and conservator. Subsequently, the Jefferson District Court made the guardianship permanent and appointed Elderserve, Inc. as Husband’s guardian. Elderserve later found evidence that Husband was not competent to enter into marriage at the time of marriage and petitioned for annulment of Husband and Wife’s marriage.

Prior to the guardianship action, Wife obtained powers of attorney from Husband allowing her to liquidate and transfer the majority of Husband’s property to herself, including financial resources necessary for Husband’s continued care. Eldercare moved to recover the assets, but Family Court questioned whether it had jurisdiction over the property as part of the annulment action. Elderserve then moved to amend the petition to add a petition for dissolution of marriage to which Wife objected. Family Court denied the motion due to Johnson v. Johnson’s, 170 S.W.2d 889 (Ky. 1943), prohibition of guardian-initiated divorces. Elderserve sought a writ of mandamus from the Kentucky Court of Appeals instructing Family Court to permit Elderserve to amend the annulment action to include a petition for dissolution of marriage. In denying the writ of mandamus, the Court of Appeals held that Eldercare had an adequate remedy by appeal and that Johnson would prohibit Eldercare maintaining the action. Eldercare appealed to the Supreme Court of Kentucky.

The Supreme Court held that Husband did not have an adequate remedy by appeal given the current circumstances, and that Husband’s damages amount to great and irreparable harm. For a writ of the second class, the applicant must show an error by the court below that will result in great or irreparable injury that cannot be adequately rectified by appeal or otherwise and must show great injustice or irreparable harm even if an appeal is inadequate or unavailable. “Great and irreparable harm” means “something of a ruinous nature.” While the Court of Appeals was correct in holding that Husband had a remedy by appeal and had failed to show that Family Court was acting erroneously, denying the writ would have caused Husband to face unjust choices, either of which would have deprived him of his resources he had accumulated throughout his life and would have taken a long time. Thus, while there is a remedy by appeal, it is inadequate because the intervening time diminishes the chance that he will be fully compensated.

The Supreme Court held that Johnson’s interpretation of the 1942 statutes justifying a complete prohibition of a guardian-initiated dissolution of marriage is no longer applicable under the current statutory scheme. The Johnson rule was the majority rule at the time it was decided—that dissolution of marriage was too personal and volitional for the guardian to pursue. At that time, the statutory scheme was entirely different. Now, the guardianship statutes are intended “to provide services for incompetent persons not only as specifically articulated but also as reasonably inferable from the nature of the powers of a guardian,” which calls into question the viability of the holding of Johnson. The changes to the guardianship statutes render Johnson’s holding unwarranted with expanded guardian duties and a more complex elder law environment. Thus, Johnson is overruled to the extent it held a guardian could not maintain an action for dissolution of marriage. However, it should not be dependent on the pleasure of discretion of the guardian.

A guardian may not initiate an action for dissolution of marriage unilaterally. The guardian must seek permission from the district court with jurisdiction over the guardianship. The district court shall hold a hearing to determine if such action is in the ward’s best interests. The ward shall be permitted to participate to the extent of his abilities. The hearing should include an opportunity for the competent spouse to offer evidence as to why the divorce is not in the ward’s best interests, if feasible. If the guardian stands to personally benefit from the divorce, the district court may appoint a limited guardian for purposes of representing the ward’s interest in the matter.

Digested by Nathan R. Hardymon

The post Overruling Johnson v. Johnson’s Prohibition of Guardian-Initiated Divorces – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Questions Presented: Family Law. Writ of Prohibition. Uniform Child-Custody Jurisdiction and Enforcement Act. A circuit court’s decision that it continues to have jurisdiction over a child custody matter under the UCCJEA is an exercise of a court’s subject-matter jurisdiction. A circuit court’s determination that it has “exclusive, continuing jurisdiction” over a child custody matter pursuant to KRS 403.824(1)(a) is a decision of particular-case jurisdiction by the court. First-class writ relief is not appropriate where a party is challenging a circuit court’s determination that it has subject-matter jurisdiction under UCCJEA. Second-class writ relief is also not appropriate where appellant has adequate remedy through pending appeal on the merits.

Campbell Circuit Court

Mother and Father were initially divorced in Indiana with an agreement for joint custody. Mother moved to Kentucky with children by agreement and father followed. Mother then moved to Mississippi without any agreement or court approval. The custody agreement was registered in Kentucky and mother, after moving, filed a motion in a Kentucky family court to relocate. Mother’s motion was initially granted and the children primarily resided with Mother in Mississippi. Father exercised parenting time over summer and holidays in Kentucky. The conflict between the parties continued resulting in Father filing a motion to be the primary residential custodian. The Kentucky family court ultimately granted Father’s motion entering an order for the children to be returned to Kentucky by a date certain. Mother filed a writ in the Court of Appeals asking the Court of Appeals to stay the relocation order pending an appeal on the merits.

Mother made conflicting arguments to the Court of Appeals. She first argued that the family court was acting erroneously but within its jurisdiction – a second class writ. The Court of Appeals denied her motion for relief. She then argued that the family court lacked subject-matter jurisdiction under the UCCJEA – a first class writ. Again, her motion for relief was denied. The Supreme Court examined both arguments.

The Supreme Court turns to the first class writ argument first. A first class writ does not require a showing of irreparable injury, but must demonstrate the lower court had no subject-matter jurisdiction at all. Mother argued the family court lacked subject matter jurisdiction under the UCCJEA KRS 403.824(1)(a) because the substantial evidence regarding the children was in Mississippi, not Kentucky. Therefore, mother believed the Kentucky court lost continuing exclusive jurisdiction. The Supreme Court clarifies the distinction between subject-matter jurisdiction, the court’s power to rule on a certain classes of controversy, and particular case jurisdiction, the court’s power to rule in a specific case given jurisdictional facts as opposed to a class of cases. The UCCJEA is not “self executing.” The lower court cannot properly exercise subject-matter jurisdiction over a custody agreement and then have that jurisdiction disappear. In evaluating the KRS 403.824(a) factors, the Court was simply making a determination of particular-case jurisdiction given the facts. A first class writ fails here because the family court clearly had subject-matter jurisdiction.

Turning to the second class writ argument, the Supreme Court affirms the Court of Appeals as there is no need for a writ when Mother has an existing remedy by appeal. She cannot use the write process to “circumvent normal appellate process.” A second class writ fails here because there is an adequate remedy by appeal.

Digested by Elizabeth M. Howell

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After an incident on the bus where Doe, a minor, allegedly put T.L.C., a minor’s hand near Doe’s penis while slapping T.L.C.’s hand, telling him to “slap his meat,” Ramey, T.L.C.’s mother, petitioned for an interpersonal protective order (“IPO”). A temporary IPO was granted.

The hearing on the petition took place before the adult session of the district court. At the hearing, the district court warned Doe’s mother that Doe’s testimony could be used in criminal proceedings against Doe and that Doe had the right not to testify. Doe declined to testify. The district court entered an IPO after hearing testimony. The IPO contained no written findings. Doe appealed to the circuit court.

The circuit court affirmed the district court, holding that Doe could be represented by his mother as she was his guardian, that Doe had no right to counsel in a civil proceeding, that the district court has subject matter jurisdiction, that the district court’s warnings were appropriate, and that the IPO was properly granted on the basis of sexual assault. Doe appealed to the Court of Appeals.

First, the Court of Appeals held that the district court lacked subject matter jurisdiction to hear the matter, because the juvenile court was the only court with jurisdiction. It reasoned that jurisdiction over IPO cases is not vested in the circuit court. Where the respondent is a minor, IPO hearings must take place before the juvenile court, because it has exclusive jurisdiction in all cases relating to minors in which jurisdiction is not vested in some other court and in proceedings concerning any child living or found within the county.

Second, the Court of Appeals held that the district court deprived Doe of due process by advising Doe that his testimony in the IPO hearing could be used against him in juvenile and criminal proceedings. It reasoned that testimony in IPO proceedings is only admissible for impeachment in criminal proceedings. This prohibition applies to juvenile proceedings, because the Fifth Amendment privilege against self-incrimination has been extended to juvenile proceedings, and therefore, it is appropriate to extend the statutory protections adults receive to juveniles. Therefore, a waiver of Doe’s right to present his own testimony as evidence could not be knowingly, voluntarily, and intelligently made where he was given inaccurate advice by the district court.

Third, the Court of Appeals held that written factual findings are required for IPO cases just as they are for DVO cases.

Finally, the Court of Appeals held that it would be a very large inference to assume that Doe forced T.L.C. to touch Doe’s penis through his pants for sexual gratification, which would be required for a finding of sexual assault, where the only testimony was that Doe touched and hit T.L.C.’s hands.

Digested by Nathan R. Hardymon

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Opinion modified 1/17/2020

On appeal in a dissolution action, Husband argues that Trial Court erred (1) in hearing the case after Husband, Wife, and Children moved to Texas, as it no longer had jurisdiction; (2) in the way it divided the parties’ property; (3) in awarding Wife maintenance; (4) in modifying the parties’ partial separation agreement; (5) in awarding Wife attorney fees; and (6) in refusing to allow Husband to testify as to interest earned on his non-marital retirement funds.

Husband first argued that Trial Court lost subject matter jurisdiction to modify child support in a final decree of dissolution of marriage once the parties and the children moved to Texas, which was not in dispute. The Court of Appeals held that Trial Court retained jurisdiction to modify child support, because the parties consented to Trial Court’s retention of jurisdiction. It reasoned that jurisdiction to modify child support is governed by the Uniform Interstate Family Support Act, which vests a Kentucky trial court “continuing, exclusive jurisdiction to modify its child support order” if Kentucky “is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued” or the “parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.” KRS 407.5205(1). Furthermore, it reasoned that a temporary support order is a support order, which makes the modification statute the appropriate statute. Wife filed a motion for Trial Court to determine whether it had jurisdiction, which Trial Court answered in the affirmative, prompting a writ of prohibition by Husband. Pending the writ proceeding, the parties continued litigation in the trial court. At a motion hour, the parties agreed that the outstanding issues reserved by Trial Court included child support issues. Thus, the Court of Appeals found that the parties agreed to Trial Court retaining jurisdiction for child support under KRS 407.5205(1)(b).

Second, Husband argues that Trial Court lost jurisdiction to modify custody or parenting time under the Uniform Child Custody Jurisdiction and Enforcement Act, as neither party nor the children resided in Kentucky. The Court of Appeals held that Trial Court lacked jurisdiction to modify custody and parenting time, because neither party nor the children presently resided in Kentucky, which would not allow Kentucky to retain “exclusive, continuing jurisdiction” over custody and parenting time issues. KRS 403.824(1)(b). It reasoned that temporary custody orders are initial custody orders, which make all subsequent orders modifications, if the order is changed. Trial Court, sua sponte, modified parenting time in its final decree and no interested party resided in Kentucky. Thus, Trial Court lacked jurisdiction.

Third, Husband argued that Trial Court lacked jurisdiction to consider maintenance and marital property issues, because the parties had moved to Texas and those issues are tied to support and custody issues. The Court of Appeals held that Trial Court retained jurisdiction, because there are no statutory provisions governing jurisdictional issues related to maintenance and marital property when the parties move out of the state.

Fourth, Husband argued that Trial Court erred in failing to classify a Relocation Incentive as non-marital property. The Court of Appeals held that Trial Court properly classified the Relocation Incentive as marital property. It reasoned that the test to determine the classification of employee benefits is not whether the benefit had vested during the marriage but whether the right to participate in the plan was earned during the marriage, and should be classified as marital property if earned during the marriage unless it is a “mere expectancy.” It found that Husband earned the right to receive the Relocation Incentive during the marriage, because Husband was entitled to it as a result of moving to Texas, which he had done, and the benefits were more than a “mere expectancy,” because Husband had received all the funds during the marriage. Thus, the Relocation Incentive was marital property.

Fifth, Husband argued that Trial Court erred by failing to require Wife to reimburse him for all child-related expense he incurred during the marriage but after separation. The Court of Appeals held that Trial Court did not err, because the only expenses the parties were ordered to share were medical, dental, optical, prescription, and copay expenses, and Husband paid the other expenses out of marital funds.

Sixth, Husband argued that Trial Court erred by awarding him an Escalade. Wife requested the vehicle be awarded to her and that Husband be required to transfer title to her, but Trial Court did not enter such an order. The Escalade remained in Wife’s possession pending the divorce. She continuously requested that Husband transfer title to her so she could sell the vehicle or that Husband sell it himself, which Husband refused. Husband failed to register the vehicle in Texas after the parties moved, which resulted in Wife being unable to drive the Escalade and it being towed from her apartment complex for lacking valid registration. After telling Husband of this, he told Wife to move the vehicle or fix the issue, which Wife did not have the ability to do. The Court of Appeals held that Trial Court did not err in awarding Husband the vehicle, which neither party wanted at the final hearing, because Trial Court’s finding that Husband’s actions were in bad faith was supported by the record.

Seventh, Husband agreed that Trial Court erred by not allowing him to testify about interest earned on the non-marital portion of his retirement account. Husband had testified that he was missing approximately six years’ worth of statements. The Court of Appeals held that Trial Court did not err, because Husband “all but outright admitted that he could not meet [his] burden” of tracing the non-marital interest, because he was missing six years’ worth of statements.

Eighth, Husband argued that Trial Court erred in awarding Wife any maintenance. Trial Court ordered Husband to pay $1,000.00 per month for four years. It did not consider a non-marital IRA of Wife’s. It found that Husband earned $8,476.00 per month and had monthly expenses of $7,826.66. Trial Court did not consider fault in the breakdown of the marriage when considering the amount of maintenance. The Court of Appeals held that Trial Court did err in its maintenance award, because it did not consider the IRA, and because it ordered Husband to pay maintenance in excess of his ability to support himself. However, the Court of Appeals held that Trial Court did not err by not considering fault in the breakdown of the marriage, because Chapman v. Chapman, 498 S.W.2d 134 (Ky. 1973), merely allows trial courts to consider fault as a factor in maintenance, but does not require it.

Finally, Husband argued that Trial Court erred in awarding Wife attorney fees under KRS 403.220, because Trial Court did not consider the IRA. The Court of Appeals held that Trial Court did not err, because it considered the inequity in the parties’ incomes, [d]isparity between the parties’ incomes is . . . “a viable factor for trial courts to consider in following [KRS 403.220] and looking at the parties’ total financial picture.’ Smith v. McGill, 556 S.W.3d 552, 556 (Ky. 2018),” and even considering the IRA, Husband is in a much better financial position than Wife.

Digested by Nathan R. Hardymon

The post Trial Court Retained Jurisdiction to Modify Child Support and Divide Property, but Lacked Jurisdiction to Modify Custody and Parenting Time; an Employee Benefit Was Marital Property; Expenses for Child During the Marriage Were Marital Expenses; and Maintenance Was in Error – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

On appeal, Former Husband argued the Trial Court lacked Subject Matter jurisdiction to enter a divorce decree because neither party resided in Kentucky for 180 days prior to the filing of the petition. Former Husband also argued the Trial Court lacked jurisdiction to make a custody determination under KRS 403.800.

At the hearing held by the Trial Court, Former wife testified that the parties had moved from state to state during the marriage due to Former Husband’s military service. Former wife also testified that 180 days prior to the filing of her divorce petition, she and the parties’ minor child resided in Pennsylvania, Kentucky, and North Carolina. Although Former Wife and Former Husband were separately residing in North Carolina at the time of the hearing, each of the parties maintained Kentucky Driver’s licenses, filed income taxes in Kentucky, and frequently returned to Kentucky with the minor child to visit both sets of grandparents.

The Court of Appeals affirmed the Trial Court’s decision denying Former Husband’s motion to dismiss for lack of jurisdiction. The Court held that “when the divorcing parties’ absence from the state is temporary in nature” jurisdiction is permitted even if neither party has resided in the state for 180 days prior to the filing of the petition. The Court found that military service qualifies as a temporary absence and that the evidence proffered at the hearing supported a finding that Kentucky was her legal residence.

Additionally, the Court of Appeals held that the Trial Court had jurisdiction in making a final custody determination. Although the minor child resided in three different states, including Kentucky, during the 180 days prior to the commencement of the divorce action “the child and at least one parent have a significant connection with this state other than mere physical presence” as required by KRS 403.822(1)(b). The Trial Court properly exercised jurisdiction because Kentucky was the legal residence of both the parents.

Digested by: Emily T. Cecconi

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