16 Dec October 25 Round Up
From the week of October 25, the Round Up presents one BIG BIG BIG case and some others that aren’t worth much. You’ll be able to tell which is which from the length of our opinions. Happy reading!
Blaine Van Gansbeke v. Bridget Van Gansbeke, 2023-CA-0942
The Court of Appeals vacated Judge Lauren Ogden’s decision in Jefferson County Family Court. The primary issue related to the role of a Friend of the Court (FOC) and the ability to meaningfully cross-examine the FOC and the sources that the FOC used in his report.
By way of background, a Friend of the Court is a practicing lawyer appointed by a judge in a family law matter to investigate issues related to a child or children. The FOC can speak with a wide variety of sources. The FOC is required to file a written report and detail their sources and notes before offering any testimony to the court.
The parties involved in the case were classic Family Court litigants. Blaine and Bridget were married in 2003, had two daughters, and divorced in 2013. However, Blaine and Bridget couldn’t quit each other – at least, they couldn’t quit fighting one another in Family Court. The litigation raged on from the date of divorce through the next decade.
The issues on appeal related to the FOC report and the inclusion of information from the children’s therapist, Dr. Ann Hammond. Blaine’s lawyer had initially sought to depose Dr. Hammon, believing that her deposition would be contrary to the children’s welfare. Bridget’s lawyer agreed with the therapist, and in an odd ruling, the Court agreed and entered an order that said that Dr. Hammon could not be deposed.
When the FOC filed his report, he identified Dr. Hammon as a source of information he used to make his recommendations. Pursuant to statute, Blaine’s lawyers sought information from the FOC, including data, reports, notes and the like. Blaine did not receive anything in response to his request. In part, this was because the request was sent to an incorrect FOC email address. At any rate, Blaine moved to exclude the FOC report and Hammond’s statements. The Family Court judge denied this.
On appeal, Blaine raised seven grounds for a reversal. The Court of Appeals agreed with him on two of them and, reversing the decision, found the others to be moot.
In the analysis, Judge Acree found that the statutory protections regarding FOCs are mandatory. The appellate court reasoned that the Family Court should have excluded the FOC report. The Court of Appeals correctly noted that there are due process concerns in the FOC reports and that protections against due process violations include both the 10-day notice requirement AND a pre-hearing right to obtain all written materials reviewed by the FOC. Further, the order that prohibited the taking of Dr. Hammon’s deposition deprived Blaine and his lawyers of their chance to refute the allegations and conclusions of the FOC and Dr. Hammon. The Court of Appeals took a strong stand against the trial court’s playing ‘fast and loose’ with evidentiary standards regarding parenting and fundamental rights.
In sum, this case is one to remember—perhaps even a candidate for Family Law Case of the Year honors. This is the latest chapter in a continuing series of the Court of Appeals reigning in Family Court judges, especially in Friend of the Court cases.
The lawyers in the case were Barrow Brown Carrington (BBC) for Blaine and Mary Rives Chauvin for Bridget. Jim Murphy served as the FOC. Judge Ogden was the trial court judge.
To be Reported. http://opinions.kycourts.net/COA/2023-CA-000942.PDF
Troy Horton v. Tareena Horton, 2023-CA-1112
The Court of Appeals affirmed a decision by the Breckinridge County Circuit Court related to a Motion to vacate a decree entered in Jackson County Circuit Court. The Parties filed a divorce in Jackson County. The husband, Troy, was served, but he failed to attend the final hearing. Not surprisingly, he lost.
Their decree was entered on July 27, 2022, and any post-trial motions should have been filed within 10 days (aka before August 6, 2022). Troy, being Troy, did not file the motion on time. Instead, he waited 10 months to file his Motion to Vacate.
The Court of Appeals was having none of this. It was an easy call for Judge Thompson to make on this one.
Unreported. http://opinions.kycourts.net/COA/2023-CA-001112.PDF
S.S.W v. Commonwealth of Kentucky, CHFS, S.J.B., and R.C.B., 2023-CA-1450
The Court of Appeals affirmed a Hardin County Family Court decision to terminate a mother’s parental rights. In this case, the mother contested the termination action and was represented by a court-appointed lawyer. The mother lost, and her lawyer filed an appeal to protect her parental rights. The lawyer filed an Anders brief in which the lawyer certified that there were no legitimate grounds for an appeal. (The appellate courts have ruled that this is permissible, but as we’ve said before on the Round Up, it is a bad sign for the appealing party when their own lawyer doesn’t believe in the case.) The result was an affirmation.
Unreported. http://opinions.kycourts.net/COA/2023-CA-001450.PDF
D.G. v. CHFS, Commonwealth of Kentucky, and L.P., 2024-CA-0771
Another termination case, another affirmed judgment by the Court of Appeals. This was no Anders case, but the Court of Appeals found that the mother did too little and that her efforts were too late. It was a sad case, but not unexpected.
Unreported. http://opinions.kycourts.net/COA/2024-CA-000771.PDF
Criminal Tally
This week’s criminal tally was a blowout. The final score was Prosecutors 7, Defendants 0. At some point, the appellate courts might find that there was a reversible error in a criminal court. But, for now, any conviction is a good conviction.
Thanks for reading! Click here for the previous Round Up.