22 Oct Oct 4 Round Up: Autumn Appeals

The Court of Appeals was low-energy and low-output during the first week of October. The good news is that Round-Up won’t take much of your time, and our loyal readers can quickly get back to autumnal activities.

Sarah Jesensky v. Dale Jensensky, 2023-CA-1394

In this routine decision, the Court of Appeals affirmed a Kenton County Family Court judge in contempt of court finding. 

In the Opinion by Judge Goodwin, the facts are straightforward. Sarah and Dale, married in 2005 and divorced in 2023, entered into a marital settlement agreement (MSA) that outlined the division of their property and debts. Key points included Sarah refinancing the marital home within 120 days and both parties equally splitting a “Loan to Learn” debt with a local bank. 

Sarah did not comply with the Order. She stopped paying the mortgage altogether, forcing Dale to negotiate a payoff with the bank he alone paid. The payoff resulted in a reduction in the amount owed by the parties of approximately $15,000. Additionally, Dale claimed that Sarah did not pay her obligations on the bank loan. Contempt motions were filed on both points. Sarah countered with claims against Dale for failing to sign a quit claim deed. The trial court held hearings on all three motions and sided with Dale. Sarah was held in contempt of court on the refinancing issue and ordered to pay one-half of the education loan debt. The trial court did not hold Dale in contempt of court.

The Court of Appeals affirmed on all points. Judge Goodwin summed up the case by saying it was “uncontested that Sarah failed to refinance the house loan.” This followed some standard language on the law on contempt of court and effectively created a presumption of contempt. Further, Sarah did not offer any evidence of attempts to refinance the loan. No applications. Nothing. Without any proof, Sarah didn’t stand a chance.

Similarly, both the trial court and the appellate court held that Sarah was responsible for one-half of the education loan. Sarah argued that since Dale had paid off the loan, she was responsible for no part of the debt. The Court of Appeals, recognizing that this was a stupid argument, was not buying it.

Finally, Sarah unsuccessfully argued that she didn’t have to finance the residence because Dale had not signed a quit claim deed. The Court of Appeals efficiently dissected this argument. Unreported. http://opinions.kycourts.net/COA/2023-CA-001394.PDF

G.B. v. Commonwealth of Kentucky, CHFS, A.S., and S.B., 2024-CA-0079

In an unusual opinion, the Kentucky Court of Appeals affirmed a Jefferson County judge’s finding of abuse/neglect of a child. The case began with allegations that a mother was driving drunk with her child as a passenger. When the mother was arrested, the police released the child to the father, who called a person named Catina Lewis to “babysit” the child. After a series of months, there was a Petition filed that the father had abandoned the child. 

There was also some allegation that the father was selling drugs, but it did not appear that the trial court heard any proof regarding these rumors. At the trial, Judge Laura Russell found that the child had been abused or neglected due to the father’s providing “little to no support” and having “little contact” with the child. The father appealed.

In the appeal, the father argued that the investigation was flawed from the start and complained that he had not even been interviewed. He also claimed that the prosecutor should have dismissed the Petition. The Court of Appeals found that those issues were not important as they related to the finding of abuse/neglect. The Court stated, “Any alleged flaws in the investigation and Petition are irrelevant.”  [Note: the Round-Up disagrees with this statement. Many Family Court judges would include a flawed or shoddy investigation in weighing the evidence at trial.]

The father further argued that there was insufficient proof of his neglect of the child. Judge Thompson rejected this argument. The Court of Appeals found that the definition was satisfactorily met, and that the father

• Failed to provide essential parental care and protection
• Abandoned the child, and
• Failed to provide the child with adequate care, supervision, food, clothing and the like.

The conclusion is unusual and, perhaps, a first of its kind. It appears that neither court considered the first portion of the statute that defined an “abused or neglected child.” In the law, the child must have his/her “health or welfare harmed or threatened with harm.” At least in the written Opinion of the Court of Appeals, there is no episode in which harm or the threat of harm is identified. It seems illogical that the babysitter was competent and appropriate enough to be granted temporary custody by a Family Court judge, but a decision by the father to place the child with the same individual constitutes child neglect. 

Of course, there would be other means to grant permanency to the child, including but not limited to an action based on the de facto custody statute. If this decision stands, then any financial non-support of a child for a period of a few months might constitute child abuse/neglect. Unpublished. With good reason. http://opinions.kycourts.net/COA/2024-CA-000079.PDF

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