16 Sep Sept 5 Round Up: You Know What They Say About Presuming
One case of note this week is in the area of child support. If followed correctly, this reported case should be of use to the Family Court bench and bar.
Chad Herl v. Haley Herl, 2024-CA-0412
The Kentucky Court of Appeals (Judge Jones writing) weighed in on what happens when divorcing parents agree to waive child support—an increasingly common arrangement since Kentucky’s presumption of equal timesharing took hold. In Herl v. Herl, the panel vacated and remanded a Jefferson County Family Court order that had imposed $754 per month in support without first making the necessary statutory findings.
Chad and Haley’s Marital Settlement Agreement, incorporated into their 2022 decree, said no child support would be set, but expenses would be shared. A year later, Haley moved for support. The family court treated it as an initial order under KRS 403.212, rather than a modification under KRS 403.213, and skipped over the required finding of a substantial and continuing change in circumstances.
The Court of Appeals clarified the law: an agreement waiving support is still a “decree respecting child support,” meaning later requests are governed by the modification statute. Under Nelson v. Ecklar, moving from $0 to a guideline amount creates a rebuttable presumption of material change—but that presumption can be defeated with proof that the parties’ circumstances haven’t really shifted.
On remand, the family court must conduct a proper evidentiary hearing and make findings on whether Chad rebutted the presumption.
Practice Pointer: Lawyers should be prepared to address both sides of the presumption. The moving party benefits from a guideline calculation showing a 15%+ jump, while the responding party has a real chance to demonstrate that the family’s circumstances haven’t changed enough to justify an order. Judges need to make findings either way.
Kudos to counsel—Jason Dattilo for Chad and Jennifer Frederick for Haley.
Reported. http://opinions.kycourts.net/COA/2024-CA-000412.PDF
C.J. v. CHFS, Commonwealth of Kentucky, A.G.E., and G.M.D., 2024-CA-1283
A run-of-the-mill TPR case in which the judgment of termination was affirmed. Counsel for the father filed an Anders brief in this one, but it appears that there may have been some grounds to argue either at trial or on appeal.
Unreported with good reason. http://opinions.kycourts.net/COA/2024-CA-001283.PDF
N.R.Z. v. Commonwealth of Kentucky, CHFS, C.A.L.J., and L.J., 2025-CA-0338
In an unpublished Franklin County opinion, the Court of Appeals (Judge Combs writing) affirmed the termination of a father’s parental rights. The Cabinet had laid out a case plan that included random drug screens, but the father never passed—or even took—a single test. Despite referrals to treatment and parenting classes, he failed to complete any component of his plan and provided no support for his child. The court concluded he could not show sobriety or stability to ensure the child’s safety, and the appellate panel saw no abuse of discretion.
Unreported. http://opinions.kycourts.net/COA/2025-CA-000338.PDF
B.W.M. v. CHFS, E.K.M., and K.R.M., 2025-CA-0271
In another Franklin County case, the Court of Appeals (Judge Cetrulo writing this time) affirmed the termination of a father’s parental rights to his young daughter. The Cabinet had been involved for over two years, offering services ranging from substance abuse treatment to supervised visitation. Father made some late progress—signing a lease days before trial, starting counseling weeks before, and asking for more time—but the Court found it wasn’t enough. With over half of his drug screens missed or failed, no financial support paid, and a long gap in parenting, the panel held the family court did not abuse its discretion in finding termination was in the child’s best interest.
The opinion is a classic “too little, too late” story, contrasting last-minute efforts with the steady need for permanency.
Unreported. http://opinions.kycourts.net/COA/2025-CA-000271.PDF
Criminal Tally
The winless streak continues for defendants and inmates in criminal cases. A shut out this week.
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