Horses racing at the 150th Kentucky Derby

16 May Horse Races and Round Ups

The first Friday in May is the Kentucky Oaks race day. Louisville dockets are typically light, and local schools are closed. Kentuckians are having brunch and getting the mint julep fixings from local liquor vendors. Despite all of that, it was business as usual for the Kentucky Court of Appeals. The Court issued four sobering decisions in matters of family law before heading out to the track to enjoy the day (we assume). Here are the highlights.

J.P.T v. Commonwealth of Kentucky, CHFS, J.D.T., and P.C.T., 2023-CA-0218

In a scathing decision from a Boone County Family Court decision, the Court of Appeals addressed the brief’s deficiencies. In doing so, the Court of Appeals decided to sanction the attorney who filed the brief. Judge Acree, with a reputation for being tough on enforcing the Rules of Appellate Procedure, pulled no punches in this opinion. Judge Acree outlined the chronic problems that attorney Darrell Cox for Covington, KY, has had in his appellate practice. Mr. Cox had received some stern warnings from the Court in prior cases—in fact, Judge Acree detailed the issues in Mr. Cox’s appellate advocacy—in five separate cases over six years. In short, the Court has had it with Mr. Cox and issued a separate Order that sanctions him and warned that future violations will be met with further punishment. In the actual case related to an appeal of a finding of child abuse, the Court affirmed the Family Court’s decision. The Court published the Opinion as a warning to Mr. Cox and to other lawyers who might risk playing fast and loose with the Rules. Reported.

Eugene Sisco, Jr., & Mary Ann Sisco v. Eugene Sisco, III, & Amber Hunt Sisco, 2023-CA-0383

In a run-of-the-mill grandparent visitation case, the Court of Appeals affirmed the decision to deny visitation by a special judge in Pike County Family Court. The Opinion references the fact that the trial court properly decided the case based on the Walker factors established by the Kentucky Supreme Court. Remarkably, the Court of Appeals did an admirable job of detailing the generational dysfunction in the family. This was presented in a handy Basic Bullet Point (hereinafter “BBP”) format. We’ll follow the Court’s example and show the following highlights in BBP format as well:

  • Grandfather Petitioner (Eugene Jr., hereinafter “Junior”) is a lawyer and he represented himself and his wife. (More on that later.)
  • Dad (Eugene III, hereinafter “3”) is serving ten years on a federal felony conviction..
  • Junior and 3 had bad business dealings, resulting in a judgment and, ultimately, a lien against 3’s real property.
  • Mom, Amber, is also a lawyer. When she ran for District Court Judge, Junior and his wife, Mary Ann, passed out flyers for her opponent.
  • Amber and 3 filed an EPO against Junior. It was dismissed.
  • Junior filed a complaint against Amber and 3 with the Kentucky Real Estate Commission.
  • Amber and 3, still in prison, have allowed no contact between the grandparents and the children. 
  • Everyone posts negative information about everyone on social media.

Junior, despite his being a member of the bar, failed to file exceptions to the report of the Domestic Relations Commissioners Report and Recommendations. This was fatal to his case (which was probably a loser anyway).  Additionally, Junior failed to meet the heightened standard of manifest injustice as his brief did not sufficiently note the procedural history.

In sum, this case is a textbook case on how not to litigate a family court case (or be a good grandparent). Unreported.

Shannon Fearer v. Brian Fearer, 2023-CA-0626

In a routine divorce case in Knox County, a wife appealed from multiple issues, and her arguments were soundly rejected by Judge Goodwine. Among her complaints, Shannon Fearer was not happy with child support, the rejection of the maintenance claim, and the fact that her husband was awarded a 1976 Corvette. Shannon did not timely object on the child support issue or rulings related to same. So she lost. She did a better job on the alimony front (as it was preserved at the trial court); however, her brief lacked a preservation statement. (Judge Goodwine took a lenient view on this deficiency but found that the trial court’s decision was not arbitrary, and thus, it was affirmed.) Similarly, the Court of Appeals rejected Shannon’s argument that the ‘Vette was a gift to the parties’ son. [Author’s note: Honestly, what teen needs a classic Corvette?] Unreported.

G.M.A. and M.A. v. Commonwealth of Kentucky, D.S., N.E.A., and S.E.A., 2023-CA-0941

In an important decision from the Court of Appeals, the right of a private party to file and prosecute a child abuse/neglect petition was confirmed. As some practitioners know, this legal issue has been murky over the past 30 years or so. In most Kentucky counties, anyone could file a petition alleging abuse or neglect. (In some areas of the state, these were called “counter-petitions” because one filled them out at the counter at the District or Family Court Clerk’s office.) However, this has not been the practice in Louisville, where the Jefferson County Attorney’s Office had long believed that the JCAO and it alone could prosecute these cases. This author has long felt this was a tortured view of the law and contradicted the statute. 

The Court of Appeals got this one correct in its opinion of May 3, 2024. Judge Eckerle rightly points out that the statute states “the filing of a petition may be done by any interested person in the juvenile session of the District Court”, per KRS 620.070. Like the Jefferson County Attorney, newly elected Attorney General Russell Coleman argued that while a petition might be filed by anyone, after the filing, the filer just became a witness. Judge Eckerle made short work of this meritless argument. The Opinion went on to state that the Family Court deprived the grandparent petitioners of their due process rights when it did not permit them notice nor an opportunity to be heard in the proceedings. For any lawyers who are practicing CPS cases, this will be a case to bookmark and cite. Reported.

Criminal Tally

As there were no criminal law opinions this week, the weekly tally is Defendants 0, Prosecutors 0.  Based on recent history, the criminal defense bar should celebrate this rare tie for months, perhaps years, to come.

Click here for the previous Round Up!