05 Aug July 19 Round Up: A Must-Read It and Weep
The three family law cases from the Court of Appeals from the week of July 19 run the gamut again. We are starting with a five star neglect and abuse case that is a must-read, followed by some more routine cases to round us out (or up?).
A.S. v. M.R., J.M., M.M., Commonwealth of Kentucky and CHFS, and H.R., a minor child, 2024-CA-0245, and associated cases
First up is the most important case of the week in the Round Up author’s humble opinion. The Kentucky Court of Appeals vacated a decision finding four children as abused or neglected. This is the most recent reversal of Judge Monica Meredith of Bullitt County. The case is a trainwreck in every conceivable way. The initial Petition was filed based on the mother’s arrest for assaulting the children. For reasons that are unclear, four different adults were named as “responsible parties.” At the Temporary Removal Hearing, the judge found that the Petition was deficient in its factual allegations. Despite that ruling, the Court removed the children. (Warning: It is going to get worse.)
Not one to give up easily, the Cabinet for Health and Family Services came back with an amended Petition, adding that the others were now hitting the children. The Family Court decided that again there were issues with the Petition, but AGAIN kept the children from returning home. Naturally, the Cabinet responded by filing another amended Petition. The Trial Court rejected various settlements reached by the parties and forced them into a trial that no one wanted.
The evidence presented at trial was that the mother testified that she and the Appellant Aunt were getting the children ready for school when the mother, annoyed by a pesky dog, threw a pill bottle at the dog. By all accounts, the pill bottle accidentally hit the child. The Court found that the accident constituted abuse by the mother AND that the aunt had committed abuse/neglect by “failing to protect” the child. There was no offer of proof that the Aunt had a superpower that would prevent accidents that she failed to utilize during the incident in question.
The Court of Appeals, in an Opinion authored by Judge Easton, immediately recognized the problems in the case and opened its analysis with this blockbuster introduction:
“This case presents a disturbing set of circumstances indicative of some territorial posturing which thankfully is rarely seen by an appellate court. The Appellee brief, filed by the Bullitt County Attorney’s Office, agrees with A.S. that the family court’s orders were an abuse of discretion. The Bullitt County Attorney’s Office joins A.S. in both the argument that the family court erred in ignoring its prosecutorial discretion in presenting cases and that there was no evidence to support a finding of neglect against A.S.”
The Opinion went on to explain the separation of powers concept to the Family Court and faulted the Family Court for failing to follow the Hoskins process.
The Court also found that the decision of the prosecutor to present or not present certain evidence was the sole decision of the prosecutor. Even if the Court disagreed with the decisions of the County Attorney, the role of the judge is to weigh the evidence, not to second chair as counsel for the Commonwealth. Any unsworn allegations in the pleadings are not evidence. (Note: The Court of Appeals routinely cites the full text of Petitions, including evidence not offered at trial, in its own opinions. This is a story for another day perhaps.)
In the end, the Court of Appeals takes the judge to task and reverses the entirety of the case.
A special shout out to Appellant’s counsel, Monica Shahayda, is merited in this case. It is not clear whether she was court-appointed or private in this case, but clearly, this is a case that was important to appeal and win. To be Published. http://opinions.kycourts.net/COA/2024-CA-000245.PDF
Nancy Hurt v. Larry Hurt, 2023-CA-0368
The Kentucky Court of Appeals upheld Metcalfe County Circuit Court’s decision to stick with the original divorce settlement in this case – despite Nancy’s protests that she misunderstood the property division terms. Nancy and Larry’s divorce saga is a classic tale of “he said, she said,” with ten acres of land caught in the middle.
Nancy and Larry, both represented by lawyers, hashed out a mediation agreement that divvied up their marital property. Nancy got the house and four acres, Larry got six acres. Simple, right? Not so fast. Nancy later claimed she thought she was getting the house plus an additional four acres, not just four acres total. She cried foul, but the family court wasn’t buying it. The court noted Nancy had plenty of time to review the agreement, signed it with her lawyer present, and even affirmed it in her deposition. So, no take backsies.
Additionally, Nancy wanted an evidentiary hearing to argue her case further, but the court didn’t see the need. The Appeals Court agreed, noting there’s no law requiring such a hearing in this context. Unreported. http://opinions.kycourts.net/COA/2023-CA-000368.PDF
Randolph Allen v. Anita Hale Allen, 2023-CA-0657
In this appeal from Floyd County, the Kentucky Court of Appeals decided to both affirm and reverse parts of the family court’s decision, giving us a little bit of everything in this spicy divorce drama. Randy and Anita, after 18 years of marriage, decided to call it quits in 2018. The couple had accumulated a fair share of assets, leading to a two-day trial filled with arguments over what was marital and what was nonmarital property.
One of Randy’s arguments was based on res judicata raised from a past partial action. In that case, Randy and Anita filed suit against her sisters and their spouses to determine who was going to get the land originally owned by her parents. That court said that the sisters would own it equally with the husbands and said that the husbands had no present interest. The family court thus ruled it nonmarital. However, the Court of Appeals reversed, saying that the “source of the funds” rule applied to divorce cases and the trial court would have to hear all of the facts before rendering a judgment.
On another claim by Randy, the Court of Appeals found that Anita was bound by the terms of a contract regarding property in the absence of fraud or duress. The Court of Appeals also addressed issues related to a dental practice and an investment account that are very fact-specific.
The takeaway is that clients are usually bound by their own agreements. However, the Court of Appeals found that they are not bound by Court rulings in other prior real estate cases where a differing law applies. Unreported, for good reason. http://opinions.kycourts.net/COA/2023-CA-000657.PDF
L.M.L. v. L.M.S.; Z.T.S.; A.D.; CHFS and Commonwealth of Kentucky; and O.Z.R.S., a minor child, 2023-CA-1292
In a routine termination/adoption case, a decision by a Kenton County Circuit judge was affirmed. No real surprises in this decision by Judge Thompson who found that the biological mother did too little and it was likely too late. Unreported. http://opinions.kycourts.net/COA/2023-CA-001292.PDF
Criminal Tally
In the weekly criminal law tally, the Court of Appeals shut out criminal defendants by a score of 2-0.
The case of Keyonte Parris is an especially tough read. In it, a Jefferson County Circuit Court ruled that a dismissal was “with prejudice,” meaning the prosecutors could not re-indict the defendant. This was apparently due to the prosecutors not issuing subpoenas and not being truthful with the Court. Surprisingly, the Kentucky Court of Appeals is giving the Commonwealth a mulligan on it and will give them another bite at the prosecutorial apple. A lousy ruling. http://opinions.kycourts.net/COA/2023-CA-000528.PDF
Thanks for reading! Click here for the previous Round Up.