
04 Feb 2024 Best of the Best and Worst of the Worst
Round Up of 2024
It’s that time of the year—when we celebrate, and roast, the events of the past year. The award shows. The red carpet and champagne bottles are popping. For the crackerjack editorial staff here at the Round-Up, it is time for the inaugural Best (and Worst) of Kentucky Family Law and other cases.
That’s enough hemmin’ and hawin’ now. Let’s get to the winners and losers.
The Golden Lasso Award
For most award shows, you must wait through the lesser categories (such as Best Score for Nature Documentary) before you get to the good ones. But no such nonsense here. We start with the big prize: The Golden Lasso Award, to be given annually to the most significant family law case of the year. This year, there were many contenders for the coveted prize; in the end — according to our independent accounting firm, it was a tie. Both cases addressed issues related to using the Friend of the Court in custody proceedings.
In Van Gansbeke v. Van Gansbeke, the Court of Appeals reversed a Family Court judge for the admission of a report. The Friend of the Court issued a report and cited a local psychologist, Dr. Anne Hammon. However, the Family Court did not permit the taking of Dr. Hammon’s deposition or getting her file. This deprived the father of a fair trial. Our original summary of the case from the October 25 Round Up is linked here.
Similarly, in Adair v. Emberton (featured on the July 11 Round-Up), the Court of Appeals threw the book at a Family Court decision that was rife with errors. The FOC failed to file a written report or interview the child despite a written order relating to the very issue. Additionally, the grandmother was kept in a Zoom waiting room, rather than being permitted to participate meaningfully. It is worth noting that the FOC here was the same lawyer who participated in the Van Gansbeke case.
In sum, the pair of FOC cases collectively serve as a warning to Family Court judges, lawyers, and litigants regarding the limits on the usage of FOC testimony. The Court of Appeals is sounding the alarm and telling everyone who has these cases that the rules should be followed, or they will be reversed. Thus far, recognition of this alarm is mixed at the trial court level, with some folks being cautious and others not seeming to care. Stay tuned on this.
The Sharpshooter Award
This year’s Family Law Litigation Prize goes to the Hon. Bryan Gowin. His work on a rare writ on a custody case was detailed several months ago. If you missed it, it’s linked here. Short version: It was a tough case, but Bryan rose to the task. Fortunately, the Court of Appeals also acted quickly to right the wrong. There is no cash prize or party favor, but we appreciate good work. All of our clients benefit from instances when zealous advocates step up.
The Wet Firecracker Award
The Wet Firecracker is given annually to the dud of the year. It is not necessarily the worst opinion of the year, but it will have a long-lived impact in a negative or unintended manner.
Kentucky Supreme Court Division
There were several contenders this year; however, the Kentucky Supreme Court just banished the Offer of Judgment Rule (CR 68) in all family law cases. The case, Picard v. Knight, spotlighted a showdown over attorney fees in a child support modification case. The Court’s decision? CR 68’s offer-of-judgment rule is officially outlawed in domestic cases. While the Court might’ve had noble intentions, this decision eliminates a tool that brought plenty of stubborn parties to the bargaining table. We’ve rehashed the case below, but you can read our original write-up here.
The Dust-Up: Jay Picard and Katherine Knight have a child together. After a heated battle over child support, Picard offered a settlement of $150 per month, citing CR 68 to recover his legal fees if the final judgment turned out more favorable than the offer. Knight refused, and the trial court eventually ruled that no child support was owed. Picard asked for $15,000 in legal fees based on his CR 68 offer, but the trial court said, “Not so fast.” The Court of Appeals agreed, as did the Supremes, declaring CR 68 is preempted by KRS 403.220 in all family law matters.
Why This Matters: The Supremes argue that family law isn’t a traditional shootout between winners and losers. They say CR 68’s financial penalties could spook parties from seeking fair resolutions. But here’s the rub—CR 68 wasn’t just a hammer but also a carrot. It pushed litigants toward settlements, saving time, money, and courtroom drama. Tossing it entirely feels like overkill, mainly since the rule could’ve been limited to financial disputes, leaving parenting and custody issues untouched.
What’s Left in the Saddlebag: The Court says we can rely on KRS 403.220 and CR 11 to handle bad behavior and frivolous filings. But those tools don’t pack the same punch. KRS 403.220 is discretionary and focuses on financial disparities, while CR 11 targets abusive filings. Neither gives the same structured incentive to settle financial disputes efficiently.
The Verdict: By banning CR 68, the Court may have tossed out the baby with the bathwater. The decision leaves family law practitioners without a proven tool for taming contentious financial disputes. If anything, the Supremes should’ve made CR 68 optional for child support and property issues. The Round-Up believes the Supremes misfired on this one.
Kentucky Court of Appeals Division
The Kentucky Court of Appeals has issued an unusual decision in Cabinet for Health and Family Services v. D.R., holding that every termination of parental rights (TPR) case must have a hearing—no exceptions. While the intent to ensure fairness is understandable, this ruling doesn’t hold up under closer scrutiny. The link to the case can be found here: http://opinions.kycourts.net/COA/2024-CA-000415.PDF
The Commonwealth sought to terminate a father’s parental rights, citing abandonment and failure to provide essential care. The father countered with a motion for summary judgment, arguing there was no evidence to support a finding of neglect or abuse, mainly since no such adjudication had occurred in prior proceedings. The Family Court agreed and dismissed the case without holding a hearing.
In an Opinion by Judge Goodwine, the Court of Appeals reversed, citing KRS 625.080’s requirement for a hearing in all TPR cases. The Court emphasized that TPR cases must be “fully adjudicated,” even if the petition’s allegations lack merit. The statute which reads that “The Circuit Court shall conduct a private hearing.” The emphasis in the Opinion was on the word “shall,” as opposed to the word “private.”
Why It’s a Problem: Requiring a hearing for every TPR case, regardless of the sufficiency of the allegations, imposes unnecessary burdens on the courts and families. When the facts don’t support termination—such as when no abuse or neglect has been alleged or proven—forcing a hearing wastes judicial resources. Summary judgment exists precisely to avoid trials without genuine issues of material fact. For example, if the Cabinet admitted that there was no “abuse or neglect” but that a child was dependent, it is impossible for the Court to enter a Termination Order as a matter of law. The law shouldn’t demand a trial where none is warranted.
An interesting note: in the same statute, there is a provision that “The hearing under this chapter shall be held within sixty (60) days of the motion by a party or the guardian ad litem for a trial date.” Will the Court of Appeals mandate that this shall also be mandatory? (Spoiler alert: in a series of unreported cases, it has been ruled that violating 60-day deadline to have a trial is not a problem.)
The Louis L’Amour Award for Legal Writing
Last but not least, the award for best Legal Writing goes to Supreme Court Justice Conley for his outstanding opinion in Commonwealth v. Master. We briefly mentioned it in the criminal case section of the December Supreme Court Round Up, but read on for a more detailed summary.
This opinion has it all. In dealing with a problematic issue (allegations of child pornography), Kentucky’s high court addressed the legal and factual issues with thoughtful analysis. The consideration of constitutional tests involved the Fourth Amendment as well as Section 10 of the Commonwealth’s Constitution. Justice Connelly differentiated between science and smear. The Opinion exemplifies the best of legal writing with careful analysis of the legal precedent and standards to be utilized to analyze future cases. It carefully and persuasively avoids the common pitfall of “the accused are unworthy of constitution protections since the crimes alleged are heinous.” The Round-Up also gives bonus points to the footnotes contained in the Opinion. The first is:
“[T]he weakest of all weak things is a virtue which has not been tested in the fire.”
-Mark Twain, “The Man that Corrupted Hadleyburg”, in The Complete Short Stories and Famous Essays of Mark Twain.
The Round-Up considers this to be a slam dunk quote and looks forward to using it in further appellate briefs.
The capstone to this Opinion may be a footnote which references the fact that the search warrant fails to differentiate what videos might have been at the defendant’s residence. It states that the detective’s affidavit might have referenced any of the following: movies containing “Disney princess, Peppa Pig, Bluey, or child porn,” a fact which weakened the affidavit and led to no probable cause.
As always, thanks for reading! We had a blast compiling this Round Up of Round Ups for you, our loyal readers. Although the H+A team was not graced with any wins at this award show (despite our claim-to-fame feature on the April 5 Round Up), we still want to thank everyone who reads these, engages with them, and maybe even uses them in their casework. Here’s to many more Round Ups!