a crowd of people dressed in graduation robes and caps

16 May Talk about an MRS Degree: Grad Season Round Up

Despite grad season being in full swing, last week was an uneventful week at the Court of Appeals. Best summed up as: (1) the civil contempt CLE refresher, (2) the perfect example of why everyone hates divorce attorneys, and (3) the one where he did everything right and still lost it all.

Thinh Nguyen v. Tue Tran, Commonwealth of Kentucky, CHFS, 2023-CA-0162

The Kentucky Court of Appeals affirmed a finding of civil contempt by Judge Lauren Ogden of Jefferson County Family Court. Judge Ogden found Mr. Nguyen in contempt of court for his “repeated” failure to abide by the parties’ Marital Settlement Agreement. Mr. Nguyen also complained in his appeal that his incarceration violated his constitutional rights. Judge Agree, in an unreported decision, affirmed the trial court’s decision. The Opinion is a tidy piece of judicial writing that cites a long list of reported decisions that summarize the Court’s contempt powers.  (This is one case to keep on hand if pursuing a contempt motion.)  Due to the manner in which the Opinion is written, it is unclear whether Mr. Nguyen argued the lack of a written Show Cause Order. Specifically, Judge Acree confirms that Mr. Nguyen had “notice” but does not reference the issuance of a written order. Unreported. http://opinions.kycourts.net/COA/2023-CA-000162.PDF

Cristina Arce v. Javier Arce, 2023-CA-0715

The Court of Appeals affirmed a Hardin County Circuit Court order that addressed payment of property taxes (and interest) in a post-decree divorce case.  The case is noteworthy if only due to the fact that this is the third trip to the Kentucky Court of Appeals and the 19th year of litigation for Cristina and Javier Arce. (Someone needs to let them know that there is no reward for repeat customers to the Court of Appeals, even if the customer loyalty encompasses an entire grade school education era.) Other than the length of the litigation, the Opinion is unremarkable. Short version: Chrina did not pay the property taxes in compliance with the Parties’ Agreed Order; therefore, she loses. Javier gets the judgment, plus statutory interest of six percent. Unreported.  http://opinions.kycourts.net/COA/2023-CA-000715.PDF

P.L.B. v. Commonwealth of Kentucky, CHFS, and D.G.B., 2023-CA-1344

In a decision that terminated a father’s parental rights, the Court of Appeals affirmedthe decision of a Franklin County Family Court judge. Judge Eckerle, while acknowledging the father’s substantial progress towards reunification, found that it was “too little, too late” in classic TPR style. The presenting problems in the case were the parents’ drug abuse and “criminal lifestyle.” (Note: the mother died during the pendency of the case. The cause of her death was not revealed in the Opinion.) The Father presented proof of his compliance including:

  • Maintaining sobriety
  • Stable housing
  • Enrolling in parenting classes
  • Participation and current enrollment in a Drug Court program
  • Refraining from criminal conduct – including no new criminal charges
  • Making child support payments
  • Maintaining contact/supervision with the child while having a strong family support network

Additionally, the child voiced his desire for reunification with his father through the child’s Guardian ad Litem. Alas, this was not enough for the trial judge or Judge Eckerle who wrote that “hope is not evidence.”  (This conclusion is questionable, at best, as the Trial Court is statutorily tasked with determining whether there is “reasonable expectation of improvement that would warrant reunification in the foreseeable future.”)  

Finally, the case would seem to undercut the benefits of any parent’s participation in a Drug Court program if those successes will not aid in a TPR defense. Just our 2 cents. An unreported, and frankly depressing, decision. http://opinions.kycourts.net/COA/2023-CA-001344.PDF

Criminal Tally

In this week’s criminal tally, the prosecutors dominate the defendants by a score of 3-0.

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Click here for the previous Round Up.