21 Jun And They’re Off! June 14 Court of Appeals Round Up
The June 14 Round Up has a lot of variety in it and several notable cases. It also includes a treat in the form of a successful appeal by the Helmers + Associates team! Other highlights include some great legal writing as well as some lackluster judging. We will sort out the winners and losers below. Enjoy!
Scott Bryant v. Helen Bryant, 2021-CA-1427, and cross-appeal
In this appeal from a divorce case in Jefferson County Family Court, the Court of Appeals tackled a multitude of issues. In this case, the husband, Scott, asserted six separate errors, while the wife, Helen, asserted three errors. Scott’s claimed errors are (1) nonmarital tracing, (2-4) imputation of income for maintenance and child support, (5) deviations of child support, and (6) attorney fees and costs. Helen claimed problems with a dissipation claim, private school tuition, and the use of an average income to set child support and maintenance.
Judge Santry had provided a lengthy analysis in her 26-page opinion, plus orders on post-trial motions. The Court of Appeals affirmed the Family Court’s decision in every regard, except a tracing claim. In this Opinion, there is some good language for practitioners to read – particularly concerning tracing non-marital claims and the proof that is required to prove them. It appears that counsel for each party put on quality proof, and the Family Court wrote a detailed and fact-based order that was able to survive scrutiny. The quality of the Court of Appeals decision, authored by Judge Jones, is also noteworthy. Unreported. http://opinions.kycourts.net/COA/2021-CA-001427.PDF
Brandon Fitzgerald v. Jaron Shafer; Payton Carter; and Shane Carter, 2023-CA-0075
A rare appeal on venue in Family Court. The judge in McCracken County denied a Motion for a change in venue without conducting a hearing. The father appealed, citing the Civil Rules, which the Court of Appeals admitted seemingly supports his position. Notwithstanding that, the Court stated that KRS 452.010 “clarifies” that the grounds for a transfer are consent of the parties OR a claim that a party cannot have a fair and impartial jury trial – both of which are inapplicable in this case. There is some bonus dictum on contempt for those readers who enjoy the contempt stuff. Unreported. http://opinions.kycourts.net/COA/2023-CA-000075.PDF
K.S. v. Commonwealth of Kentucky, CHFS, and K.J.S., 2023-CA-0238, and associated case
A termination of parental rights case was affirmed in this one. Counsel filed an Anders brief and there is every reason to skip this Opinion. Nothing new. Unreported. http://opinions.kycourts.net/COA/2023-CA-000238.PDF
John Thrasher v. Jeremy Criswell, Jeanne Criswell, and Jade Thrasher, 2023-CA-0564
In this case, the Family Court in Wayne County granted sole custody of a child to the maternal grandparents. There were multiple cases going on at the same time in the same family, including an abuse/neglect case, a divorce, and a de facto/waiver case brought by the grandparents. The Family Court found that the abuse case should be dismissed but allowed the grandparents to proceed with their custody case.
Despite not meeting the minimum time period of six months for de facto, the judge found that the father, John, was “unfit” and had thus waived his superior right to custody. (Note: The child’s mother consented to her parents’ petition for relief.) The father’s case was harmed by the fact that he crashed his truck, which was “found upside down beside the highway.” It was also alleged that John was drunk and had a 13-year-old passenger who had consumed alcohol that John had given to him. (Practice pointer for litigants in Family Court: Don’t do this.) There were also issues of John’s penchant for violence and untreated mental health issues that did not help him. After providing a nice summary of the relevant law controlling this issue, Judge Karem easily confirmed the decision. Unreported. http://opinions.kycourts.net/COA/2023-CA-000564.PDF
Austin McCormack v. Madison McCormack, 2023-CA-0721
In another opinion by Judge Karem, the Court of Appeals reversed a decision on custody and timesharing. In this case, the Family Court did not include written findings from Special Judge Dan Kelly in Russell County. The Court of Appeals did not appreciate this. The Opinion reminded this judge (and others) of their duties in custody cases. Quoting Keifer and Anderson, Judge Karem wrote:
“Moreover, even when a trial court makes oral findings from the bench, ‘the trial judge’s duty is not satisfied until the findings have been reduced to writing.’ Additionally, a court’s ‘[f]ailure to [make any of the statutorily required findings of fact] allows an appellate court to remand the case for findings, even where the complaining party failed to bring the lack of specific findings to the trial court’s attention.’”
It is obvious that the appellate courts are ready to reverse, and bare-bones orders will enjoy no presumption of validity. Unreported. http://opinions.kycourts.net/COA/2023-CA-000721.PDF
Nicklas Wilburn v. Kristin Wilburn, 2023-CA-0816
In this case, Judge Easton reversed Greenup County Family Court regarding a timesharing agreement. As with Judge Karem above, the Court of Appeals is not tolerating orders without needed finding of fact. However, the decision of the Greenup Family Court did not seem as grievous as the case above. The judge had conducted two previous hearings and overruled the claims on both instances. In the latest installment, the Court said that there were no new allegations, and CHFS had done a home study that found no reasons for concern. Notwithstanding that, the matter was remanded for additional fact-finding and analysis. The Round Up predicts the same outcome on remand. Unreported. http://opinions.kycourts.net/COA/2023-CA-000816.PDF
John Richie v. Commonwealth of Kentucky, CHFS, and Eric Friedlander, 2023-CA-0900
In this Jefferson County appeal of an administrative finding of child abuse (authored by your very own Helmers + Associates), the Kentucky Court of Appeals reversed the decision of the Cabinet for Health and Family Services and Circuit Court. In this case, the Cabinet issued a substantiation letter (aka a “sub” letter) of child abuse. The appellant, a school teacher, filed an appeal and remarkably, the Hearing Officer found that the Cabinet’s finding was flawed. However, it wasn’t over yet. The Final Order from Eric Friedlander, the Secretary for the CHFS, reversed the Hearing Officer and found that the Cabinet’s original letter was correct. (Seriously, does anyone understand why the CHFS Secretary has the final word and oversight on a case where CHFS is a party? Does that make any sense? Is there any other area of the law in which a party gets to trump an administrative judge?)
Mr. Richie appealed the decision of the Cabinet to the Jefferson Circuit Court. Judge Perry sided with the state. He again appealed, this time to the Kentucky Court of Appeals. To our delight, the appellate court sided with the Hearing Officer and reversed the Final Order. The Court of Appeals articulated that the Secretary could not act in an arbitrary manner. His letter failed to identify any factual or legal basis for his decision. This case will likely prove to be an important safeguard for parents against Cabinet overreach. Unpublished, but one to know. http://opinions.kycourts.net/COA/2023-CA-000900.PDF
Telisha Goswick v. Johnny Goswick, 2023-CA-1065
The Court of Appeals considered a mother’s appeal of the Trial Court’s denial of her motion to reinstate visitation. In the case, Telisha and Johnny divorced in 2019, with Johnny getting sole custody of their six children. Telisha was given visitation rather than shared parenting time due to her new husband’s abuse of the children. In August of 2022, the Court ordered that Telisha was to have no contact as there was an open investigation by CPS. It also stated that there would be no contact until children saw a mental health professional. In October, the mother filed a motion to lift that requirement. There is no mention of an abuse/neglect case or a substantiated claim against her at that time.
Ultimately, the Court conducted a hearing on July 13, 2023 (nearly a year after suspending the visits). At that time, Dr. Jody Giles, who performed an evaluation, opined that the children had sustained severe emotional trauma by the mother and her husband. Dr. Giles recommended no contact with the children. The Court of Appeals Opinion does not discuss the reasons for this recommendation, assuming there was a stated rationale. Also, a social worker testified and admitted that there was no reunification plan.
The mother appealed, but her claims were rejected with little analysis from the Court of Appeals. Unlike other cases in which the Court demanded specifics, Judge Thompson parroted the order’s conclusions but offered no specifics. A footnote to the Opinion stated that the Court “will not recount the abusive incidents set forth in the record so as to help protect the children’s well-being and privacy.” The mother’s claimed that the lack of a pathway to reunification was fatal to the decision of the Family Court, but the appellate court disagreed. Unreported and, to be honest, an unremarkable opinion. http://opinions.kycourts.net/COA/2023-CA-001065.PDF