01 Mar Marching to the Beat of the Court of Appeals’ Drum
March is here, and with it comes another edition of the Court of Appeals Round Up from your favorite Family Law firm. This week, we have quite a few Family Court appellate opinions for your perusal. Half of them were written by Judge Acree, which we find…interesting. The big takeaway is: if you’re appealing a decision, make sure you have a lawyer who’s comfortable with the Rules of Appellate Procedure.
Casey Shannon Hennessy v. Sandra Denise Hennessy, 2021-CA-1050
In a divorce/custody appeal from Judge Simms in Nelson Circuit Court, the Court of Appeals affirmed in all respects. After a long marriage that produced 4 sons, Casey and Sandra’s marriage was on the rocks. This was likely caused by Casey’s extramarital affair with Tiffany, whom he met in Florida. In addition to problems with Sandra, this Tiffany situation created problems with the sons and, ultimately, with their counselor and with the Court. The Court granted sole custody to the mother and limited Casey’s parenting time to one time per month and only in KY. (By the time of the trial, Casey had moved to Florida. For infinite breakfasts at Tiffany’s, we assume.) Unfortunately, the Court of Appeals did not address any parenting/custody issues, as the children had all turned 18. This opinion, written by Judge Acree, is a slam dunk for lawyers looking for appellate level decisions on the issues of student loans, child support, and arrearage calculations. Unreported. http://opinions.kycourts.net/COA/2021-CA-001050.PDF
Mary Burdette v. Amos Burdette, 2022-CA-0341
The Court of Appeals affirmed the findings out of Scott County Family Court concerning the division of a retirement account after some discussion on the unusual arguments Mary presented. At the trial court level, Mary argued that she should get a greater percentage of her retirement based on the violence of her husband. She also argued that the statute was unconstitutional due to vagueness (an inventive theory, to say the least). The trial court divided the marital retirement into a 60/40 split but did not allow passive growth for Mary. She raised the lack of passive growth at trial and on appeal. Despite this being her best argument, neither the trial court nor Judge Acree agreed. Unreported and a possible Kentucky Supreme Court candidate. http://opinions.kycourts.net/COA/2022-CA-000341.PDF
Raymond Edward Rhorer v. Diana L. Rhorer, 2022-CA-0571
The next case illustrates the importance of having an experienced lawyer on an appeal. In a dispute over the home equity division, Raymond chose to represent himself. He failed to follow the appellate rules, and, unfortunately, Raymond faced Judge Acree. Instead of dismissing the appeal,Judge Acree made an example out of him by applying the “manifest injustice” standard. For casual readers, this standard is usually the death knell of an appeal, and it was in this case. With the heightened standard, the trial court was quickly affirmed. Unreported. http://opinions.kycourts.net/COA/2022-CA-000571.PDF
Briana Gebell v. Debbie Appleman; Nick Appleman; and Ryan Roberts, 2023-CA-0443
In this case, Judge Karem delivered a surprising opinion, reversing a custody decision in favor of relatives over a biological mother. The mother, Briana, has mental health concerns, while the dad, Ryan, had a string of criminal offenses and longstanding chemical dependency issues. There was an initial abuse/neglect Petition against both parents. Any time Ryan would “fall off the wagon,” the CHFS would file a new case against him and remove the child. During these periods of removal, the child would stay with the Applemans, Ryan’s cousins, who ultimately filed and won a motion for permanent custody against Ryan. However, Briana was not included in that litigation, despite being the child’s mother. The Court of Appeals found that the Applemans had not pleaded a de facto custody action and were limited to unfitness or waiver theories. Applying a black letter law approach to the case, Judge Karem found that the legal standards were unmet. The Applemans will now lose custody and, under the terms of the Opinion, Briana would regain custody. (Fortunately for the child and her mom, it appears that Briana has had unsupervised visitation throughout the process, so the child knows her mom.) Unreported. http://opinions.kycourts.net/COA/2023-CA-000443.PDF
Robert Magine v. Kristen Magine, 2023-CA-0109
In an appeal from Kenton County Family Court, the Court of Appeals affirmed an order granting “final decision making” authority to the mother, Kristen. Robert and Kristen were divorced and had two children in common. In a case apparently driven by the children’s extracurricular activities, the parents were frequent flyers in Family Court. In this case, there was disagreement over Color Guard, “Girls on the Run”, and academic team participation. The children’s GAL and counselor supported the Family Court decision, which found that a 50/50 parenting schedule was not in the girls’ best interest. One hopes the decision will give the children a more normal childhood. Stay tuned. This has the hallmark of a case that may return to Family Court and the Court of Appeals over other issues. Unreported. http://opinions.kycourts.net/COA/2023-CA-000109.PDF
Nathan Ford v. Elizabeth Nicole Wilsey, 2023-CA-0528
Finally, in a routine DVO appeal in which the perpetrator represented himself, the Court of Appeals finds in favor of the victim. The appellant claimed there was no domestic violence proof. Judge Thompson disagreed. Unreported. http://opinions.kycourts.net/COA/2023-CA-000628.PDF
And, last but not least, this week’s criminal tally.
Prosecutors: 6 Defendants: 0
Will criminal defendants ever get a win? Stay tuned…