01 Apr Stampede! Ten Family Law Opinions from the Court of Appeals
Recently, we had a stampede of family law cases from the Kentucky Court of Appeals. There were ten (10!) Opinions regarding family law rulings during the week of March 18-22, 2024. Almost every facet of family law is represented here, from child support and maintenance to domestic violence to the UCCJEA. This Round Up has got it all. Let’s get going!
Jamie Patterson and Paul Pennington v. Martha Allen and Brian Ledford, 2022-CA-1248
The Court of Appeals addressed claims for de facto custody that were originally heard in the Knox County Family Court. The Family Court judge originally granted de facto custody to non-parents Jamie and Paul, but later reversed itself. The biological father, Brian was able to convince the judge that certain dates while the children were in foster care (as opposed to “Kinship Care”) should not count toward the minimum number of days required by statute. This can be an important decision for lawyers when representing potential non-parents when assuming placement of another person’s child. The case also addresses claims based on waiver and unfitness theories. Unreported, but should be reported. http://opinions.kycourts.net/COA/2022-CA-001248.PDF
Janet Reyes Hernandez v. Raul Hernandez Marcial, 2022-CA-1252
The case presents a novel claim regarding oral recitation of agreements that might differ from the Court’s Order. In this case, Janet and Raul appeared before Judge Derwin Webb and agreed in open court that Raul would get the house. No question about that. However, the order mistakenly said that Janet would get the house, and no one caught the error. When the error was eventually spotted, Raul wanted the court to fix it, but Janet now believed she might like to keep it instead. Judge Webb did the right thing and found that Janet could not get the house. [Editor’s Note: Janet seems like a mean person, and Raul is better off without her.] The Court of Appeals confirmed that the Family Court had this power under CR 60.01 Clerical Mistakes. Unreported. http://opinions.kycourts.net/COA/2022-CA-001252.PDF
Jason Imholt v. Haley Hotchkiss, 2022-CA-1367
In an appeal from contempt for violating an IPO (interpersonal protective order), the Court of Appeals affirms the sentence. Facts worth knowing: The trial judge was unhappy with Jason Imholt’s conduct. Jason had previously been held in contempt and failed to show for the hearing despite being “undisputedly in the Courthouse” shortly before the hearing. The result was 180 days to serve. In Jail. No Releases. Do not pass go. Do not collect $200. And the Court of Appeals affirmed with an admonition that it would not condone a collateral attack or formulate arguments for the luckless Jason. http://opinions.kycourts.net/COA/2022-CA-001367.PDF
Timothy O’Keefe v. Angela Marie O’Keefe, 2022-CA-1378
Mr. O’Keefe again appeals from a Bullitt County maintenance case. His first was successful as the Court of Appeals found that Judge Meredith’s findings of fact were deficient. On remand, Judge Meredith reduced his maintenance award from ten years to five years. On the second appeal, the Court of Appeals agreed with the Bullitt County court. Allison Russell of Louisville represented Mr. O’Keefe on the second appeal. http://opinions.kycourts.net/COA/2022-CA-001378.PDF
Christina Holt Taylor v. Tad Dirk Taylor, Commonwealth of Kentucky, and CHFS, 2023-CA-0185
The Kentucky Court of Appeals reversed a Warren Circuit Court judge in a child support modification. Tad filed a Motion to increase support when Christina failed to meet her end of their agreement. The Trial Court held at least four hearings and many hours of testimony regarding the parties’ income. Remarkably, the Trial Court failed to make findings of fact—a fatal error according to the Court of Appeals. The Court of Appeals, quoting Judge Palmore, explained, once again, that this error would not be tolerated, and the case was remanded for a separate order or judgment that contains the required findings of fact. Unreported. http://opinions.kycourts.net/COA/2023-CA-000185.PDF
Soumayo Jabrazko v. Eric A. Kleiman, 2023-CA-0336
In an appeal from Kenton County, the Court of Appeals addressed 13 claims of error in a divorce involving property. After providing an overview of the property division process from Travis, Judge McNeill began to sort through the case. The crux of the case is addressing language from prior cases (Chenault and Allen) that states that commingled funds can remain nonmarital so long as they do not fall below the pre-marital balance. Thankfully, Judge McNeill discards this language – calling it a “misapplication” of Allen. It made no sense then, and it makes no sense now. Kudos to McNeill on this one. To be Published. http://opinions.kycourts.net/COA/2023-CA-000336.PDF
E.H.T., Jr., and J.K.T. v. CHFS, Commonwealth of Kentucky, and E.H.T., III, a minor child, 2023-CA-0420
Question: Does KY have jurisdiction over abuse that is alleged to have taken place in Oklahoma?
Answer: If the child is in KY when the abuse is reported, yes.
Warning: There is some discussion of the UCCJEA in this one.
Unreported. http://opinions.kycourts.net/COA/2023-CA-000420.PDF
Mary Ross v. William Ross, 2023-CA-0731
In this appeal, litigant Mary Ross appeals from a grant of $500 in attorney fees, arguing that she should have received more from the trial court. Remarkably, the Court of Appeals agrees with Mary. The key to the analysis is the Marital Settlement Agreement, which provides that the breaching party would have to pay attorney fees, court costs, and other related expenses. Mary spent some $5,000 related to chasing more than $28,000 in unpaid spousal support. Appropriately $1,400 was directly related to her ex-husband’s failure to answer the discovery. The Court of Appeals reasoned that Settlement Agreements “are a type of contract and therefore are governed by contract law,” and there was no reason, legal or otherwise, for the Court to ignore the express language of the contract. Reversed and remanded to Judge Brown to apply the language of the parties’ agreement. Unreported, but important. http://opinions.kycourts.net/COA/2023-CA-000731.PDF
Russell Leberecht v. Kara Bishop Leberecht, 2023-CA-0785
The Court of Appeals addressed voluntary underemployment in a child support case that originally began in Campbell County. In this case, Russell left the police force, taking an early retirement. By doing so, he was able to take a monthly pension and was able to earn approximately $2000 from his new job. The trial court found this constituted voluntary underemployment as his total new wages were less than his police income. The Court of Appeals agreed. [Note: the outcomes of these cases will depend on the judge assigned to the case – and the peculiar facts of the case.] Unreported. http://opinions.kycourts.net/COA/2023-CA-000785.PDF
M.D.C. v. Commonwealth of Kentucky, CHFS, H.B., and W.J.C., a minor child, 2023-CA-0805
In this interesting case, the Kentucky Court of Appeals affirms the Family Court’s denial of a father’s contempt motion against a mother in an abuse/neglect case. The case has been on the docket for approximately ten years, with the judge reviewing it periodically following the disposition. Additionally, the father (who was charged with Attempted Murder, reduced to Wanton Endangerment) was a big fan of the contempt process. According to the opinion, the father had filed 11 contempt motions over the years, the latest being related to whether the mother was attending therapy.
The Trial Court Judge had had enough and found that she would no longer exercise contempt powers for past behavior or enter Show Cause orders for orders that were ten years old. The Court of Appeals agreed. However, Judge Caldwell dissented, and, as regular readers of the Round-Up know, when Caldwell dissents, it means something. The dissent found that a blanket statement that indicates that no further enforcement of orders will occur is an abuse of the Court’s authority. Further, the Caldwell dissent focuses on the paramount importance of child protection in these cases and wonders why the Cabinet would not weigh in in a meaningful manner – either to provide proof of completion of therapy or to join in a contempt motion to see that the mother gets the help that was ordered. Unpublished. http://opinions.kycourts.net/COA/2023-CA-000805.PDF
Criminal Tally
Lastly, we offer the criminal tally. At long last, a criminal defendant gets a (partial) win. The final score was Prosecutors 7.5, Defendants 0.5. By way of explanation, Mr. Khalil Coleman lost his substantive appeal regarding his conviction of complicity to robbery; however, the KY Court of Appeals said that he was entitled to an evidentiary hearing on his CR 60.02 motion. http://opinions.kycourts.net/COA/2022-CA-001040.PDF