15 Feb January 24 Round Up
For the week of January 24, the Kentucky Court of Appeals dropped a whopping eight family court related rulings. Several of them are worth a read, both on the Round Up and in full.
Michael Scott Adkins v. Allison Thomas Adkins, 2023-CA-1142
Although unreported, this case will be worth a read for family court lawyers and judges. The basics are undisputed. Mike and Alison were married in April 2022. By December of the same year, they were divorced. During the parties’ very brief marriage, Michael earned little to no income, and Allison was the primary breadwinner. The biggest issue related to the purchase of two farms, which had been previously owned by Mike’s family but were purchased at a public auction, largely with Allison’s premarital assets. The key issue relates to the characterization of the property as non-marital, marital, or a mix of both.
The Court of Appeals noted that the language of the Family Court lacked some clarity but ultimately ruled that Allison would receive the bulk of the property. Judge Caldwell, with a background in family law, did a nice job of outlining the “source of the funds” rule and dissecting Michael’s claim that Allison wanted to gift him some $188,000 in cash.
There are two other issues worth noting from this Opinion. The first relates to appellate practice. The Opinion states that Michael’s lawyer technically met the requirement of stating whether the issues were preserved, a fact that his wife did not dispute. However, there is a six-paragraph footnote outlining the proper method of preservation. The footnote concludes with a reference to the Court of Appeals Appellate Handbook, available online. We look for a crackdown on violations, technical and otherwise, of the Rules of Appellate Procedure upcoming in the near future.
The second point relates to some jurisdictions’ practice for counsel to submit proposed findings of fact. In some instances, the trial court just signs off on the version that best matches the Court’s opinion of the case. The appellate courts have long frowned on this practice, but, in some instances, permit the practice to occur. In this case, the Court of Appeals allowed the decision to be affirmed. (Perhaps, this was due to the fact that the appeal has lasted longer than the marriage itself.) However, the Court remarked that the proposed finding of fact submitted by Allison’s lawyer misspelled the Family Court judge’s name — AND the Court did not even correct it. [Practice pointer: Get this judge’s name right, if you want to increase your odds at trial.] The Court of Appeals called the misspelling and submission of findings harmless error.
Unpublished. http://opinions.kycourts.net/COA/2023-CA-001142.PDF
K.D.Y. v. W.F., Commonwealth of Kentucky, CHFS, H.Y., and K.F., 2023-CA-0790
In an unsurprising decision, the Kentucky Court of Appeals affirmed an adoption action from Lawrence County Circuit Court. The mother had a history of substance abuse and was, at least temporarily, homeless. Her court-appointed lawyer filed an Anders brief, which means that in his professional opinion, there were no meritorious issues to be raised on appeal. This is usually fatal to a parent’s appeal. The Court of Appeals found only one technical issue in the Court’s judgment, but found it harmless.
Unpublished. http://opinions.kycourts.net/COA/2023-CA-000790.PDF
William Heady v. Brenda Sue Wilcox-Heady, 2024-CA-0207
In this case, the Court of Appeals affirmed a Domestic Violence Order from Hardin County. For reasons that are unclear from the record, both local Family Court judges were recused, and a special judge (the Honorable Kimberly Winkenfhofer Shumate) presided. Following some 55 years of marriage, Brenda Sue sought an EPO against her husband, William. Brenda Sue claimed that there had been violence. Although William claimed that he had only threatened to put Brenda Sue in a mental hospital – and that alone did not meet the legal definition of domestic violence. The Court of Appeals, in an opinion by Judge Taylor, rejected Will’s claim. The Opinion cites Brenda’s testimony, including tales of “dragging around by the hair,” “slapping,” “and “pummelling.”
Unpublished. http://opinions.kycourts.net/COA/2024-CA-000207.PDF
Chase Rice v. Crystal Collins, 2024-CA-0334
In an appeal from Greenup County, the Court of Appeals reversed a finding resulting in sole legal custody to the mother and only supervised parenting time for a father. In this case, Chase and Crystal had a baby who was born in April 2023. By the time of the birth, the former lovers were on the outs. Chase did not come to the hospital for the delivery and did not see the baby for the first 4 months of her life. By August, he filed a custody action. Crystal countered with a response seeking sole custody and wanted Chase to have supervised parenting time. The trial court originally agreed, finding that Chase’s parenting time should be supervised.
The Court conducted a final hearing some six months later. Crystal stated that she still believed that Chase was a lousy father with a quick temper. On the other hand, Chase said he had a full-time job, didn’t take any drugs (and produced a clean drug screen), and was a good father to his other child, a half-sibling to the child involved in this case. The trial court sided with the mom, but the Court of Appeals, in a rarity, overruled the decision on custody and parenting time. The Opinion, written by Judge Lambert, found that there was no evidence that Chase was a danger to the child, and thus, the decision was reversed. Similarly, the Opinion finds fault with the “paucity” of the Family Court’s factual findings on legal custody.
Unpublished, but worth the time. http://opinions.kycourts.net/COA/2024-CA-000334.PDF
M.M.M. v. CHFS, Commonwealth of Kentucky, C.J.R.W., and T.R.W, 2024-CA-0620
In this case, the Court of Appeals vacated a termination of parental rights order entered in Logan Circuit Court. The issue on appeal related to the trial court’s refusal to appoint counsel for the mother. Prior to trial, the Mother completed an affidavit of indigence and the Court stated that it would appoint counsel if she appeared. On the trial date, the Mother appeared, albeit some 15 minutes late, and again requested counsel. The judge declined the appointment and proceeded to trial. Some 4 months later, a termination order was entered. The Mother appealed, claiming the lack of counsel was in violation of the law and infringed on her due process rights. To its credit, the Cabinet agreed with the mother and conceded the error. The Court of Appeals rightly reversed and remanded.
Unreported. http://opinions.kycourts.net/COA/2024-CA-000620.PDF
Z.C. v. Commonwealth of Kentucky, 2024-CA-0694
In this case, the Court of Appeals confirmed a decision of a Family Court Judge to hold a child in contempt of court. The decision arose from a case in which the child was charged with a status offense of habitual truancy. Following the arrangement on the status offense, the child was ordered to go to school, but that order was violated. The judge put the child in juvenile detention for 10 days, with 8 of those days being probated.
Unpublished. http://opinions.kycourts.net/COA/2024-CA-000694.PDF
S.P. v. Commonwealth of Kentucky, CHFS, A.M.G., and J.G., 2024-CA-0753, and associated case
There’s not much to see in this one—a sad story, with a predictable result. A three-year-old was found wandering a Kentucky highway alone, a fact that set off a chain of events that ended with both parents losing their rights. Despite multiple chances at reunification, the parents couldn’t complete their case plans, stay drug-free, or attend court-ordered programs. With no nonfrivolous grounds for appeal, the Court of Appeals affirmed the termination.
Unpublished. http://opinions.kycourts.net/COA/2024-CA-000753.PDF
Damarcus Childs v. Brittany Hammonds, 2024-CA-1089
In this appeal from an EPO/DVO, the Kentucky Court of Appeals affirmed a Jefferson County Family Court judge’s decision to grant a protective order. After nearly a decade of what she described as escalating abuse, Brittany Hammonds turned to the courts—again—to seek protection from Damarcus Childs. The Jefferson Family Court, with Judge Lori N. Goodwin presiding, granted her request and issued a Domestic Violence Order (DVO) in her favor. Childs appealed, arguing that there was no credible evidence of domestic violence and that a Friend of the Court (FOC) from their separate custody case should never have been allowed to testify. But, as written in a decision by Court of Appeals Judge Easton, the appellate panel disagreed, finding no abuse of discretion in the lower court’s ruling and affirming the DVO.
Brittany and Damarcus share two children and have never been married. Their relationship, which has spanned ten years, was described as “on-again, off-again.” Over that time, Brittany had filed no fewer than seven domestic violence petitions against Damarcus. While most of those prior petitions were dismissed, at least one—filed in 2018—resulted in a DVO. Brittany made various claims of abuse in this the most recent case, including claims that she had been assaulted and needed medical treatment. Inexplicably, she claimed to have the medical records in her possession but did not admit them to be in evidence.
Damarcus took the stand in his defense and denied every allegation, calling them outright fabrications. He argued that Brittany had a history of making false claims against him and that her real motive for seeking the DVO was interfering with his timesharing rights. The trial court found Brittany more credible than Damarcus and that the order should be entered.
The most interesting portion of the case for practitioners was that the Friend of the Court was permitted to testify in the DVO hearing. Damarcus smartly argued that this testimony was improper. The Court of Appeals agreed, at least in part, that FOC testimony in custody cases has a limited protocol, and while hearsay is permitted, the rules on a written report must be followed. (Note: there were two cases on this topic in 2024 alone.) However, the Court of Appeals found that the FOC testimony was allowed pursuant to KRE 801A(a)(2) for the limited portion to rebut claims of recent fabrication.
Unreported. http://opinions.kycourts.net/COA/2024-CA-001089.PDF
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