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08 Mar Wild and Wooly: The Court of Appeals Round Up

In this week’s Round Up, the Kentucky Court of Appeals affirmed the Family Court decisions in all cases — even when a few of them were shaky or at risk of reversal in our opinion. All the domestic cases were unreported this week. Despite that, they are worth a read if only to stay abreast of the wild and wooly nature of Family Court proceedings.

Richard Tyler Barnes v. Aleta Renzelli and Derek Wright, 2022-CA-0893

In this decision by Judge Acree, the Kentucky Court of Appeals affirms a decision of timesharing and custody. The case involves parentage issues, which is not entirely unusual as ten percent of births in KY have issues of disputed parentage. But let’s not downplay the absolute drama before the Taylor County Circuit Court here. The Acree Opinion is unusual in its initial focus on who was having sex with whom and when rather than focusing on who was actually the father. After the timeline of the lovemaking ends, the Opinion details that the mother, Aleta, knew that Derek was the likely biological father but told Tyler that she was sure that he was the actual dad. This did not end well when Derek saw photos of the child on social media.
Interestingly, the Circuit Court awarded joint legal custody to all three: the biological mother, the biological father, and the fake dad. At first, Aleta and Tyler shared equal parenting time; however, after the filing of a motion, the Court changed the primary residence of the child to Derek, who lived in West Virginia (take the child home, country roads). With some discussion of the Pennington case, the Court of Appeals affirmed the Taylor County Circuit Court, repeating that the child was doing well in West Virginia, by God, and that Derek was more than meeting his needs. It is not clear what amount of time the child spends with his mother and Tyler, but there is a notation that Tyler “no longer receives equal parenting time.”  Unreported. http://opinions.kycourts.net/COA/2022-CA-000893.PDF

Ronald Luce v. Teresa Luce, 2023-CA-0297

In this case involving both contempt and division of assets, Judge Gina Calvert was upheld by Judge Eckerle. The combination of Judges Calvert and Eckerle is not a good draw for someone charged with contempt. The Family Court found that Mr. Luce could have “made more money working at a fast food restaurant” in finding him in contempt of Court. Both the Family Court and the Court of Appeals rejected his arguments that it was impossible for him to comply with the Court’s Order based on his company’s diminishing cash flow. The Opinion of the Court of Appeals reads as if the Family Court gave Mr. Luce every chance possible to stay out of jail on the contempt. (However, the Round Up is skeptical that this was the case.)
The second portion of the Opinion addresses the division of assets and, more importantly, the post-trial motion practice of the Appellant. The Appellant filed a Motion to Alter, Amend or Vacate the decision of the Family Court, but rather than cite CR 59.05, he cited CR 59.01 (a Motion for a New Trial). The Court was unyielding and harsh in its decision with respect to the acknowledged typographical error. (Note: This approach is unnecessary, causes needless stress for practitioners, and drives good lawyers from the practice of law.)  The Court of Appeals affirmed the Family Court in each of the claimed errors, including the inconsistent division of assets (divided equally) and debts (100% to the Appellant). The Court of Appeals also soundly rejected the claims of the Appellant that the Family Court “interjected false facts into the record to support its ruling.” Unreported, naturally. http://opinions.kycourts.net/COA/2022-CA-000983.PDF

Anthony Schick v. Theresa Brown, 2023-CA-0451

The Court of Appeals affirmed a maintenance case that originated in Harrison County Family Court.  The Opinion by Judge Karem provides a lively account of the issues decided by the trial court, including the assignment of “Blue Lotus Pottery” to Theresa and the “Zombie Crawlers” (a social club for Jeep enthusiasts) to Anthony. Tony also received the benefits of the Zombie Crawlers’ trademark and Facebook Group, though they were found to have nominal value. The issue on appeal was solely maintenance ($800 monthly for year one, $500 per month for the second year, and $250 per month for the final year). Tony thought that it was too much money and appeals. Unsurprisingly, the Court of Appeals affirmed. (Note: They almost always rubber-stamp maintenance awards.)  Some discussion of the statute and normal case law in this one, but unless you want to join the Zombie Crawlers or buy some pottery, this is one you can skip. Unreported. http://opinions.kycourts.net/COA/2023-CA-000451.PDF

Paul Geouge v. Commonwealth of Kentucky, DCBS, C.S. (a mother), and E.G. (a minor child)

In this appeal from Clark Circuit Court, the Kentucky Court of Appeals affirmed a finding of abuse/neglect of a child and the commitment of the child to foster care.  In the words of the Court of Appeals, the father “contends that his consensual, alternative, fetish-driven BDSM lifestyle was used against him in the DNA proceedings” and that he is being “punished” for his sexual lifestyle and preferences. For the interested reader, there are many examples of this lifestyle that are explicitly detailed in the text of the Opinion.
Additionally, the Appellant Father states that the trial judge should have recused herself sua sponte based on her bias against him. He references the judge’s “emotional collapse” while on the bench during the trial itself. The Court of Appeals disagreed with the characterization of the judge. While admitting that the judge sounded distressed in her statements, the Trial Court’s call for a recess, especially in a proceeding without a jury, was not grounds for recusal or disqualification of the Court.
The Appellant Father claims that there were grounds for reversal in the Trial Court’s active role in questioning the child witness. The Court of Appeals disagreed with this factual basis for the agreement and cited KRE 614(B) which permits the interrogation of witnesses by the Court. Finally, it is interesting to note that the Court of Appeals Opinion lists the father by his full and complete name throughout its decision – further shaming him –  even though the underlying case was confidential. The naming of the Appellant Father differs significantly from the longstanding practice of the appellate courts and, by doing so, the confidentiality of the abused child is breached by the style of the Opinion itself. http://opinions.kycourts.net/COA/2023-CA-000735.PDF

Criminal Tally

In this week’s criminal tally, the Court of Appeals continues to affirm the convictions. The weekly count is Commonwealth 5, Defendants 0. (If a Defendant ever achieves a reversal, it will be front-page news.)

Special thanks to the awesome team at Kellner Green for their guest editing skills!

Click here to read the previous Round Up.