03 Jan November 1 2024 Round Up

Just three Family Law cases from the Kentucky Court of Appeals to start off the month of November 2024, each with a unique fact pattern.

K.H. v. CHFS, Commonwealth of Kentucky, and A.S., 2024-CA-0218 and associated cases

In an Opinion by Judge McNeil, the Kentucky Court of Appeals affirmed a termination of parental rights decision from Kenton County. The facts of the case are unremarkable for TPR cases. There were allegations of arrests, drug usage (with relapses), educational neglect and environmental dangers. The judgment of the trial court was affirmed.

Despite the decision, there are some points of interest for informed practitioners. These include:

• Lack of Notice in the original abuse case.
  • The Court of Appeals notes that the father was not served with notice of the original case despite this being required. The appellate court notes that he did not appeal the abuse case but does not address the question of how he might know to appeal a confidential case of which he was not informed. Strange.
• The father raised an ineffective assistance of counsel defense in his appeal. However, the Court of Appeals did not really address this point as it had not been raised at the trial court level. 
  • The analysis on this point is suspect, at best. How was the father supposed to preserve this issue at trial?  Was his ineffective counsel required to point out that they themself were not up to snuff?  Was the father supposed to articulate this during the trial and risk alienating his own lawyer? Additionally, the Court of Appeals notes that “claims of ineffective assistance of counsel are best suited to collateral attack proceedings after the direct appeal is over.”  What does this mean?   

All in all, a very strange opinion. Unreported, with good reason.
http://opinions.kycourts.net/COA/2024-CA-000218.PDF

King B. Jones, III, v. Haylee Brown, J.J., and K.J., 2024-CA-0546

In a case that originated in Russell County Circuit Court, the Court of Appeals affirmed a Domestic Violence Order (DVO). The facts of the case, to be honest, were grim indeed. They included allegations of a child’s broken arm and a blow to the child’s mouth that resulted in significant bleeding. It is not surprising that both the trial court and the appellate court would find that there existed proof of domestic violence and child abuse.

The interesting points that were ultimately rejected by the Court of Appeals related to procedural and evidentiary matters.

The first issue related to the timing of the hearing. The father argued that the statute, namely KRS 403.730(1)(a), mandates that a hearing be held within fourteen (14) days of the issuance of the Petition. He further argued that the grounds for a continuance under KRS 403.735 did not exist in this case, and there was no basis for continuing the case. The Court of Appeals found that the trial court “attempted to conduct a hearing on or about the fourteenth day.” (Yes, this language seems fishy to the Round-Up editorial staff.) The Court of Appeals addressed the age-old question of whether “shall” means “must” – or, in other words, is it mandatory? In this instance, it found that “shall” means something more like “should.” Note: in other recent cases, the Court of Appeals has sided with a strict approach to language like this. The recent rulings on the timing of Friend of the Court reports come to mind. The bottom line on this one: No one can know what “shall” actually means. Proceed at your own risk.

Additionally, the father reasoned that he did not get a fair hearing at the trial level. He complained that he was unable to cross-examine a key witness and that he was not permitted to call additional witnesses. The Court of Appeals rejected his claims, stating that he did not reveal what testimony he was seeking to elicit or what the witnesses might have stated. The problem with the reasoning from the Court is that it is impossible to point to the record of testimony that was not allowed. If the Court is saying that a party should have made a proffer of the expected witness testimony or evidence, it does not say this in a coherent manner. At any rate, that would seem to be the best practice for counsel if a witness or line of questions are excluded.

Unreported. http://opinions.kycourts.net/COA/2024-CA-000546.PDF

R.F.D. v. CHFS and Commonwealth of Kentucky, 2024-CA-0549

A second appeal over an attorney fee of $125. No zeros missing. In a case that appears to be based on “principle”, a grudge, or perhaps both, the Court of Appeals found that a fee was reasonable. 

By way of background, Kentucky courts have the ability to serve defendants with notice of a lawsuit with the appointment of a “warning order attorney.” In such cases, the trial court is notified that a party cannot be found and appoints a local lawyer to provide notice of the suit. In many cases, this is done by mailing letters to the last known addresses of the defendant. Afterward, a report is made by the warning order attorney (W.O.A), and the case may proceed.

A Lexington lawyer, Richard Dawahre, who had been appointed by a Family Court judge, was not satisfied with his fee of $100 plus costs ($7.38 in postage). The original case was reversed by the Court of Appeal and remanded for a hearing. The second chance at a higher appeal from the trial court didn’t go any better for Mr. Dawahare. Although he sought $500 for his services, the trial court awarded $125 plus postage. The trial court found Mr. Dawahare’s affidavit to be “credible” but found that much of his work did not constitute legal work – including tasks like driving to the local post office.

The trial court summed up its reasoning with, “A typical fee is reasonable for typical work.” This time, the Court of Appeals agreed.

 Unreported. http://opinions.kycourts.net/COA/2024-CA-000549.PDF

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