19 Dec Nov 14 Round Up: Recusals and Remands
After a lackluster few months from the Court of Appeals, the Round Up now has a stampede of essential cases. The common theme here is judicial impropriety and recusal issues. However, there is something here for everyone—time to grab an easy chair and a stiff drink for this week’s highs and lows.
Allen Ray Jordan v. Sandy Lynn Boss, 2024-CA-0593, and cross-appeal
Time to buckle up. This one is a true Round-Up stunner. A leading case for the Case of the Year honors. We’ve covered a lot of family-court fireworks over the years. Still, it is extraordinarily rare to see an appellate court lay out, in painstaking detail, how a trial judge went entirely off the rails and kept barreling on. But that’s precisely what Judge Audra Eckerle, writing for a unanimous panel (Caldwell and Cetrulo joining), does in this must-read recusal opinion.
Warning: This isn’t a sweep-it-under-the-rug opinion. This isn’t soft. This is TO BE PUBLISHED and for good reason. Every family court judge and lawyer ought to read it with a highlighter in hand.
The Sheriff, the Phone Call, and the Ex Parte Avalanche
The heart of the case is simple: during the dissolution/EPO/DVO litigation, the trial judge—Judge Joe Hendricks—took a call from the Todd County Sheriff about the very facts he was adjudicating. Not background. Not logistics. Merits. Then he confronted the litigant with that information in court, used it to question credibility, and—when challenged—insisted it was appropriate because he didn’t initiate the call.
Judge Eckerle wastes no time:
“It is undisputed here that the Trial Judge engaged in impermissible, ex parte communications about the merits of the case… He then declined to recuse himself.”
And the panel drives the point home with the kind of clarity that will end up in CLE PowerPoints for years:
“What has heard cannot be unheard.”
Chief Justice Minton’s Cameo — and the Court of Appeals Steps In
Early on, the parties sought emergency disqualification through then-Chief Justice of the Kentucky Supreme Court John Minton. He agreed the conduct was improper but declined to assign a special judge, suggesting the issue could be “addressed later by this Court” after final judgment. [The editorial board at the Round Up doesn’t exactly know what he meant by that.]
Well, “later” has arrived.
The Court of Appeals takes the invitation and swings the gates wide open:
“We take the opportunity to correct this injustice, reverse the trial proceedings and rulings, and order the recusal of the Trial Judge.”
This is extraordinary language. It is also a stark reminder that appellate courts cannot override the Chief Justice—but they can review the trial judge’s own refusal to recuse himself.
And that’s precisely what they did in this case.
Why the Recusal Was Mandatory
Judge Eckerle outlines it step-by-step:
- The judge received substantive facts from the Sheriff outside of court.
- He used those facts to contradict a witness, to challenge a party’s testimony, and to frame his own rulings.
- His tone and demeanor toward one party became openly antagonistic.
- He assessed attorney fees because the party had filed a motion to recuse him.
- He made credibility judgments on issues directly tied to the ex parte conversation.
And here comes the doctrinal thunderbolt:
“Hearing it alone, even without taking any action at all, can be grounds for recusal.”
This is a warning shot across the Commonwealth—ex parte contact itself is the violation, not the downstream rulings.
Structural Error: The Nuclear Option
Most recusal cases hinge on abuse of discretion. Not this one. The Court of Appeals applies the structural error doctrine—the same one used when a judge acts as both prosecutor and adjudicator, or when a biased juror sits on a criminal case.
“Here… the failure to recuse is an error that is as obvious as it is concerning. It goes to the fundamental structure of the proceedings, and it requires automatic reversal.”
Automatic reversal. Everything—property division, maintenance, attorney’s fees, even credibility calls—must be redone before a Special Judge. The Court doesn’t sugarcoat the consequences:
“The appearance of impropriety taints each of the rulings.”
And so they send it all back for a complete do-over.
This case is in a class by itself. It is a sharp, sobering reminder that fairness isn’t just about outcomes—it’s about process. Judges cannot rely on off-record conversations, no matter how well-intended the caller or how frustrating the litigants. The legitimacy of the entire system depends on clean boundaries.
Published. http://opinions.kycourts.net/COA/2024-CA-000593.PDF
Kyle Long v. Samantha Long (now Scruggs), 2024-CA-1423
The Court of Appeals is back with another published reversal. This time on relocation, findings, and a trial court’s wholesale failure to do the one thing Kentucky law requires above all else: explain itself.
Judge Lambert, writing for a unanimous panel (Combs and Easton concurring), vacates a Harlan County Circuit Court relocation order because the trial judge granted a mother’s request to move the children out-of-state with zero findings of fact, zero conclusions of law, and zero best-interest analysis. Not thin findings. Not incomplete findings. No findings at all.
This one is a must-read for any family court judge handling relocation motions—and for any lawyer who has ever watched a “skeleton order” turn into a final judgment.
The Set-up: A Move to South Carolina and a Silent Court
Samantha Long (now Scruggs) asked to relocate the parties’ children to Greenville, South Carolina, to live with her new husband. Kyle objected, asked for equal parenting time, filed affidavits, and pressed for a full best-interest evaluation.
The family court held a short hearing. No oral findings. No analysis. Then—months later—it entered an order drafted by Samantha’s counsel, granting relocation and adjusting time-sharing, while completely ignoring:
- Kyle’s objection
- Kyle’s separate motion for equal parenting time
- Kyle’s concerns about possible ex parte communications
- The required statutory and case-law standards
- The best-interest factors under KRS 403.270
As Judge Lambert dryly notes:
“The circuit court failed to make any findings of fact or conclusions of law related to the best interest standard.”
That’s about as blunt as appellate writing gets.
The Text Messages That Should Have Set Off Sirens
Before the order was entered, Kyle received text messages from the mother’s new husband telling him that the judge was “granting” the motion—before any order existed.
Kyle filed the messages with the court and asked for a hearing. The court issued no findings about that issue either.
And the Court of Appeals noticed.
On remand, Lambert directs the trial court to address “any other pending motions… including but not limited to Kyle’s… allegation of possible ex parte communications.”
That line alone will get this Opinion cited in motions across the Commonwealth.
Published. http://opinions.kycourts.net/COA/2024-CA-001423.PDF
Aundria McClain v. Donald Taylor, 2025-CA-0499
Jefferson County Family Court invites another procedural reminder from the Court of Appeals—this time in a sharp unpublished opinion authored by Judge Moynahan, with Judge Eckerle and Judge McNeill concurring. Louisville attorney Jason Bowman secured a reversal for the respondent, and the lesson is straightforward: you cannot hold a DVO hearing without valid notice.
Here’s what went wrong. The original DVO hearing was snowed out. The Family Court issued a written continuance resetting the hearing for February 25, but the record showed no service of the new date—no mailing, no hand delivery, no return of service, not even proof of who called whom. The only “notice” was a voicemail from an unknown number that arrived after the hearing had already occurred. The Family Court nevertheless proceeded without the respondent and granted a full DVO after a hearing that lasted less than 3 minutes.
Judge Moynahan didn’t mince words:
“Service via voicemail is facially insufficient under the plain language of CR 5.02.”
And the panel emphasized that due process in DVO cases isn’t optional:
“The minimum requirements of due process require adequate notice and a meaningful opportunity to be heard.”
Because the court held the hearing without proper notice, the DVO could not stand—regardless of the underlying allegations. The case is remanded for a fresh evidentiary hearing with proper service and proper procedure.
Unpublished. http://opinions.kycourts.net/COA/2025-CA-000499.PDF
S.G.F. v. Commonwealth of Kentucky, CHFS, J.F., and M.F., 2025-CA-0364
Here’s an unpublished Meade County TPR case that, on its face, looks straightforward. The Court of Appeals affirms termination of parental rights (TPR) after years of noncompliance and a deeply troubled dependency record. But buried beneath the surface is a serious evidentiary concern—one that the Round Up believes deserved far more attention than the panel gave it.
The mother’s counsel did the hard appellate work here, challenging the trial court’s admission—and apparent reliance—on a certified copy of the entire DNA file, a mountain of documents “rife with unsubstantiated hearsay,” as the appellant put it. Add to that the social worker’s broad testimony relaying medical reports, provider statements, and historical allegations from Norton Hospital. It is important to note that the mother’s counsel made a timely objection to the admission and specifically stated that the file was so large that it was “impossible to tell what portions of the file the Cabinet or court was relying upon.”
But instead of engaging with the substance, the Court sidestepped nearly every hearsay question by leaning on preservation. Judge Lambert writes:
“Because her objection… did not raise the issue of hearsay, her claim on appeal is not preserved.”
And again:
“Mother has not… identified the substance of the challenged testimony… It is not the role of the appellate court to craft a party’s argument.”
Fair enough under the rules—but this is a TPR case, the civil equivalent of the death penalty. And as the Round Up editorial board sees it, when liberty interests of this magnitude collide with a record packed with hearsay and entire categories of evidence introduced wholesale, the Court’s decision to “look the other way” raises eyebrows.
The panel conducts a harmless-error gloss, citing Prater and finding that even if incompetent evidence crept in, “other competent evidence” supported the trial court’s findings. But here is the problem: when the entire underlying DNA record is admitted en masse, and when historical medical allegations are relayed by a witness who was not present for them, it becomes nearly impossible to separate the competent from the incompetent.
That is precisely why specific, granular objections matter—and why this case is a cautionary tale for every TPR lawyer in Kentucky.
This is one case that the Round Up hopes the Kentucky Supreme Court takes a close look at. The stakes of termination are too high for appellate review to hinge on whether a trial lawyer uttered the words “hearsay within hearsay” at the exact right moment.
But until then, TPR practitioners, take heed:
- Make your objections specific. Every. Single. Time.
- Object to the exhibit and its contents.
- Object to hearsay and double-hearsay.
- Object to reliance on DNA orders and the facts underlying them.
- Object to social-worker summaries that rest on what others said.
Because once the objection is deemed “not preserved,” the door swings wide open for all sorts of material that would never survive a standard evidence exam.
This is an unpublished case, and it stays that way, but it signals a worrying trend. When trial courts admit enormous volumes of DNA material and hearsay-driven testimony, the Court of Appeals may default to harmless error—whether or not the underlying evidence truly meets the clear-and-convincing burden.
Unpublished. http://opinions.kycourts.net/COA/2025-CA-000364.PDF
Timothy McIlwain v. Brooke Berry and H.B., a minor child, 2024-CA-1487
No surprises from the Court of Appeals in our last family law case this week. The panel affirmed the DVO based on the child’s consistent disclosures, supporting testimony from the therapist, and the family court’s credibility findings. All of these were reviewed only for palpable error because the pro se appellant failed to preserve any issues. Judge McNeill emphasized (again) that the COA will not reweigh evidence in DVO cases, especially where the record contains spontaneous statements and corroborating behavior.
Unreported. http://opinions.kycourts.net/COA/2024-CA-001487.PDF
Criminal Tally
As is typical, the Commonwealth won most of the cases this week. The weekly tally was Cops 4, Robbers 1.
Although not a family law case, there is one case that deserves a summary here.
Delrico McKissick v. Commonwealth of Kentucky, 2024-CA-1404
In a published and unusually forceful Fourth Amendment opinion, the Court of Appeals reversed a conviction after finding that Hopkinsville police conducted an unconstitutional pat-down and warrantless bag search during a routine traffic stop. Judge Cetrulo, writing for a unanimous panel, emphasized that the officers had no reasonable suspicion, no probable cause, and no lawful basis to search the passenger or his bag—simply because the underage driver possessed tobacco products.
Credit goes to defense counsel and public defender Jennifer Hubbard, whose suppression challenge preserved a clean record and ultimately dismantled every justification the Commonwealth offered.
Takeaway: Even in Kentucky, an unlawful search is still an unlawful search. And when police leap from a minor traffic stop to rummaging in a passenger’s bag, the exclusionary rule still has teeth.
Published. http://opinions.kycourts.net/COA/2024-CA-001404.PDF
Whew! That was a long one. As always, thanks for reading. Click here for the previous Round Up.