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31 Jul July 11 Round Up: You Can’t Just Wing It, Even In Family Law

Wow! A rowdy week at the Court of Appeals. A bunch of significant cases. The issues in the Opinions published on July 11 range from Friend of the Court procedure flaws to horse doping, from de facto custody to secret hearings and ex-parte communications. For legal eagles, this week’s output represents the best and worst of family law from the trial court to the appellate decisions. The results are uneven. Sometimes sloppy and, at other times, careful judicial reasoning. It is all here.

Carl Hazelwood v. Shawna Hazelwood, 2022-CA-0817

A curious case involving Carl and Shawna Hazelwood. Carl and Shawna had a strange relationship by any standard. The couple was married, but would often quarrel; Shawna even made frequent claims of wanting to divorce Carl. She followed through with this threat on at least two occasions, only to dismiss the claims when the parties had reconciled. In 2019, she filed again and actually showed up at the default hearing with Carl not in attendance. Shawna offered proof and was able to get a decree; however, she failed to inform her husband. Of note was that the judgment awarded Shawna all of her pension.

According to the Court of Appeals, they continued to live like they were married. Specifically, they still lived together, vacationed together, co-parented together, and continued sexual relations. Ultimately, Shawna grew tired of all this make-believe marriage stuff and moved to enforce the terms of her secret decree. Carl didn’t like that. The trial court agreed with Carl but then inexplicably changed its mind and sided with Shawna. Judge Acree at the Court of Appeals seemed to split the baby. Following the analysis of the applicable Civil Rules, the trial court’s valuation of the marital home to be divided equally would stand, but Carl would be permitted to keep an equal share of Shawna’s pension. Unreported. http://opinions.kycourts.net/COA/2022-CA-000817.PDF

Jeremy Delk v. Cynthia Delk, 2022-CA-1197

In this high-value, high-stakes divorce case, the Kentucky Court of Appeals affirmed the judgment of the Jessamine County Family Court in the division of property.  Jeremy and Cynthia’s marital estate was valued at almost 15 million dollars. In the end, the trial court awarded more than 12 million dollars to Jeremy and only 2 million dollars to Cynthia; however, the Family Court ordered an equalization payment of approximately 5 million to balance the division.

There are some interesting issues for practitioners to note. First, the Court of Appeals found that a valuation date other than the date of decree was acceptable. In doing so, the Court found that the Thielmeier case was not an absolute on a mandatory valuation date. Strangely, in this case, neither party sought a business valuations of the date of the decree. Additionally, the Court of Appeals affirmed a monthly payment of $15,000 from Jeremy to Cynthia until the equalization payment was made. In addition to its high-asset nature, the case has a fair level of further intrigue, with a guilty plea to charges of horse doping and Andy Warhol art collecting. Unreported. http://opinions.kycourts.net/COA/2022-CA-001197.PDF

Michael Anthony Milliner v. Mary Allison Milliner, 2023-CA-0279 and cross-appeal

In an appeal from Bullitt County Family Court, the Court of Appeals reversed an award of a home to the wife, Allison. Michael argued that the award was not supported with evidence contained in the record. The Court of Appeals found that Judge Monica Meredith failed in all aspects on issues concerning the residence. There was no finding of the value, either past or present, and no reason why Allison should have received it all. Clearly, the Court of Appeals was underwhelmed with the quality of the judicial opinion. However, as the Court remanded the issue related to the residence, the trial court will get a second bite at the apple. It will be interesting to see whether the judge reaches the same destination or takes a different approach. Scott Wantland of Bullitt County represented the successful appellant in this case. Unreported. http://opinions.kycourts.net/COA/2023-CA-000279.PDF

Maxwell and Martina Rigdon v. Jeffrey and Brenda England, 2023-CA-0984

In an important case involving claims for de facto custody, the Court of Appeals vacated a decision to place children in the custody of the grandparents, Jeff and Brenda England. The case is factually based on Jeff and Brenda’s care of the minor children for a period of considerable time. Legally, the case appears to hinge on recent statutory changes that permit claimants to “aggregate” time to meet the minimum time changes. The decision by Judge Combs addresses whether this can be done retroactively to the changes in the law. Additionally, and perhaps more importantly, the Court of Appeals discusses what it means to abdicate the role of a parent in this context

Judge Combs wrote that the biological parents did not voluntarily relinquish their role in any manner. The fact that the parents needed help from the grandparents did not translate into a type of abandonment. The Court also hinted that the grandparents may have abused the situaton with their own issues of control and overreaching. In this case, the Court of Appeals opted to vacate the finding of de facto custody altogether rather than remanding for additional findings or hearings. As a practical matter, many parents might sever the relationship between kids and grandparents after such a protracted legal struggle. This is an important read for all custody lawyers. To be Published. http://opinions.kycourts.net/COA/2023-CA-000984.PDF

W.F.B. v. CHFS; B.X.L., a minor child; B.M.L.; B.N.L.; and P.L., 2023-CA-1013

Although not to be published, this case is an important read for adoption and termination of parental rights lawyers. The Mother, in this case, raised an important constitutional argument, specifically relying on a dissent in the M.S.S. case from the Supreme Court from 2022. However, this argument was not made at the trial court level, and the Kentucky Attorney General was not served with the notice during the pendency of the termination/adoption. Thus, Judge Eckerle deemed that it was waived. The lesson to be learned is ALWAYS to preserve these agreements in writing before the trial court. There are genuine issues with Kentucky’s statutory scheme and violations of the minimum protections for parents established by the SCOTUS.

The Court of Appeals also brushed aside serious claims of error by the Family Court. For example, the Court allowed a GAL report to be entered after the trial was conducted rather than following the statute. The Court of Appeals ignored the heretofore standard of “strict compliance with statutory mandates” and applied a harmless standard to the case. This is the type of case that should be appealed to the Kentucky Supreme Court. Kelly Kirby Ridings, counsel for the mother, should be applauded for her appellate work on this one. Unreported. http://opinions.kycourts.net/COA/2023-CA-001013.PDF

Kyle Link v. Kayla Link, 2023-CA-1073

In a noteworthy case involving custody between a parent and a non-parent, the Court of Appeals addressed standing issues. In this opinion authored by Judge Annette Karem, the Court found that a non-parent had standing to pursue a custody action based on Kentucky’s statutory framework. The Kentucky Court of Appeals conceded that Kyle, step-father to the child, failed to meet the requirements to pursue de facto custody. However, he was able to pursue his claim under KRS 403.800(13) which permits a non-parent to pursue custody if they have parenting time at least 50 percent of the time. Kyle and Kayla had shared a 50/50 schedule with the child and their biological daughter for more than three years. The Court of Appeals found that this period of time was sufficient for Kyle to bring his claim for joint custody. To be Published. http://opinions.kycourts.net/COA/2023-CA-001073.PDF

Christine Cooper v. Donald Cooper, 2023-CA-1098

In this case from Fayette County Family Court, the Kentucky Court of Appeals affirmed the equal division of credit card debt. In the opinion, the Court acknowledged that there is not a statutory presumption of debt being marital in nature. The facts in this case were made more difficult in that the parties had multiple credit cards (although none were in the joint names), and they routinely used the cards to cover almost all purposes. The Court of Appeals described the case as a “perfect illustration of why property division components in divorce cases should not be delayed.”  While understanding that most parties would be unable to differentiate purchases over many years as being marital or nonmarital, the appellate court affirmed the simple solution of just halving the remaining credit card balance. Unreported. http://opinions.kycourts.net/COA/2023-CA-001098.PDF

Sharronn Adair v. Reba Emberton; Terry Lee Adair, Jr.; Terry Lee Adair, Sr., 2023-CA-1100

In this case, the Kentucky Court of Appeals threw the book at a Family Court decision with more twists than a soap opera plot. Here’s the scoop: Grandma Sharronn had custody of her grandkid, initially taken due to the mom’s heroin hiccups. Fast forward, and Reba’s cleaned up her act, so she asks for more mommy-and-me time. The Family Court expands her visitation without giving Grandma a fair shake or even a heads-up. The Court of Appeals faulted Judge Gatewood for conducting a hearing without proper notice. Additionally, Grandmother was in a Zoom Waiting Room during a portion of the hearing. Further, the FOC failed to file a written report or interview the child, violating a very specific Order of the Court. In sum, the Court of Appeals emphasizes that you can’t just wing it, even in family law. They reversed the ruling, reminding everyone that proper notice and solid evidence are the golden rules, not just optional extras.

With respect to the role of FOCs, this case underscores the necessity of due process and thorough evidence in custody and visitation modifications. It highlights the pitfalls of relying on unsworn testimony and ex-parte communications. The Court of Appeals again stresses the importance of adhering to procedure and ensuring all parties have fair notice and opportunity to participate. Family law practitioners should adhere rigorously to procedural rules to safeguard their clients’ rights. The Round Up believes that this may be a candidate for the Case To Remember for 2024. A must read. To be Published. http://opinions.kycourts.net/COA/2023-CA-001100.PDF

Jamison Burns v. Elizabeth Burns, 2023-CA-1131

In a very strange opinion, the Kentucky Court of Appeals affirmed a decision from Meade County Circuit Court. The issue was primarily related to the legal standard required to modify visitation (aka timesharing). The Domestic Relations Commissioner (hereafter the “DRC”) purported to have used the best interest factors from the statute. The Court of Appeals found that this was appropriate. At one point in the Opinion, the Court asked rhetorically, if the statutory factors were not to be considered, what factors did the dad seek to have applied?

Most shockingly, the Court found that the DRC, who had previously represented the father in the same case, could still serve as the Commissioner in the case.  The Round Up finds this conclusion to be odd at the very least. Best practice would have been to request that both parties and counsel either waive the obvious conflict OR object in writing. There is little to be gained from having a DRC be a lawyer and a pseudo-judge in the same case. Unreported. And embarrassing. http://opinions.kycourts.net/COA/2023-CA-001131.PDF

Darius Bowie v. Tyokia Bowie, 2023-CA-1391

In this DVO case, Judge Angela Johnson was reversed by the Kentucky Court of Appeals. The Opinion, by Judge Allison Jones, found that the Family Court’s written findings did not establish that stalking had occurred and may occur again. Judge Johnson had made certain oral findings that were not incorporated by reference in the written order. The appellate court applied the statutory definition of stalking and found it was unmet. (Round-Up note: The Court of Appeals came to an opposite legal conclusion in a case only weeks ago.) 

Further, Darius argued that he had a right to engage in constitutionally protected speech. Namely, he reported “adulterous acts” to Tyokia’s commanding officer in the US Army. Such activity is prohibited under the Military Code of Conduct. On remand, the Family Court is obligated to address the constitutional claims when it reconsiders the case. To be Published. http://opinions.kycourts.net/COA/2023-CA-001391.PDF

Kevin Sharpton v. Katherine Lott, A.S., G.S., and L.S., 2024-CA-0138

In this appeal of a domestic violence case, the Court of Appeals affirmed the entry of a protective order. The victim alleged domestic violence including the following:

  • Putting a gun to the head of the mother;
  • Threatening to “blow her brains out”;
  • Killing the family pets in front of the children; and
  • Holding the family as “prisoners in their home.”

Mr. Sharpton disagreed with these allegations. 

The trial court agreed that the allegations were credible and entered a three year order. The Court of Appeals had no problem affirming the decision. Unreported. http://opinions.kycourts.net/COA/2024-CA-000138.PDF

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