08 Sep August 29 Round Up: A Mixed Bag
It was a mixed bag from the Kentucky Court of Appeals this week in the Family Law field. One or two noteworthy cases. One of which should be reported, but wasn’t. The others were lackluster. Indeed, this week’s output is worth a gander and will be discussed in the weeks and months to come by the folks in the know. Without further ado, let’s Round UP!
David White v. Aleisha Cole, 2024-CA-0725
Another reversal out of Jefferson County Family Court, and this one is a must-read for every judge and practitioner handling custody modifications. The Kentucky Court of Appeals affirmed a contempt finding but reversed the trial court’s sua sponte award of sole custody. The Family Court had stripped the father of joint custody, even though the mother had never requested sole custody, and without the statutory findings required by KRS 403.340 and KRS 403.270. The Court of Appeals made short work of that ruling, restoring the parties to joint custody and equal footing.
Jason Bowman of Louisville carried the appeal with no appellee’s brief filed, and his work shines. The Opinion, authored by Judge Eckerle, underscores the dangers of “make it up as you go along” custody rulings and reminds family courts that the presumption in favor of joint custody remains strong.
Of equal importance, the panel used this case to give clear guidance on the role of Friends of the Court (FOCs). The Family Court had permitted the FOC to testify without being named as a witness, to sit in the courtroom during other testimony, and to opine without a new report. The Court of Appeals flagged these as serious due process concerns and reminded judges that KRS 403.300(3), Greene v. Boyd, and Van Gansbeke v. Van Gansbeke (the latter featured on a previous Round Up) mandate disclosure, notice, and the right to cross-examination. That portion of the Opinion is mandatory reading for anyone practicing in custody cases.
The contempt ruling stayed in place. Father’s decision to take the child on a cruise over spring break, in direct defiance of the court’s denial of his modification request, sealed the contempt finding—even though a delay by Homeland Security may have made the return even later than planned.
This case is unpublished, but it reads like one that should be reported. It stands as a potent reminder: custody modifications must be grounded in statute and evidence, not frustration with litigants.
Takeaway: Family courts cannot award custody changes on their own initiative—statutory findings and due process come first, every time.
http://opinions.kycourts.net/COA/2024-CA-000725.PDF
J.M., Sr. vs. A.L.C., Commonwealth of Kentucky, CHFS, and J.M.M., Jr., a child, 2024-CA-0995
Not every appeal breaks new ground, but sometimes the reminder is worth repeating. J.M. v. Cabinet is a case of this kind. The Fayette County Family Court terminated Father’s parental rights in part because he delayed completing the Interstate Compact for the Placement of Children (ICPC) process. The Court of Appeals reversed, pointing to A.G. v. Cabinet (Ky. 2021), which held the ICPC does not apply to biological parents against whom no abuse or neglect is alleged. On remand, the trial court may still consider termination, but it cannot rely on Father’s lack of ICPC compliance.
Family Court judges should take note: A.G. has been the law in Kentucky for about five years now. Requiring ICPC compliance of a biological parent with no findings of abuse or neglect is error, plain and simple.
Takeaway: Unless you have this precise fact pattern, there’s not much new here—just a reminder that ICPC is off the table for nonabusive, biological parents.
http://opinions.kycourts.net/COA/2024-CA-000995.PDF
Kelli Gwendolyn Wright v. Jeffrey James Wright, 2024-CA-1233
In this case, the Kentucky Court of Appeals affirmed property as being marital in nature. As always, the characterization of nonmarital versus marital is largely fact-specific. In this case, the trial court found that the gift from Kelli’s parents was intended for both parties, despite the parents’ testimony to the contrary. Unreported, if an unusual result.
http://opinions.kycourts.net/COA/2024-CA-001233.PDF
L.D.D. v. Commonwealth of Kentucky, CHFS, D.G., and D.L.R.G., a minor child, 2024-CA-1320
In a parental rights termination case, the Kentucky Court of Appeals affirmed the decision of Muhlenberg County Circuit Court to terminate parental rights. Not much to see in this one. The question, at least in the opinion of the Round Up editors, is how there can be no appealable issues created or preserved in a TPR case. It seems an indicator that counsel, whether court-appointed or privately retained, is “phoning it in.” More on that issue at a later date.
Unreported. http://opinions.kycourts.net/COA/2024-CA-001320.PDF
L.N.E.H. v. Commonwealth of Kentucky, CHFS, and H.V.H., a minor child, 2024-CA-1340, and associated cases
Just a sad case. Tragic really. The KY Court of Appeals affirmed a termination case. A classic case of “too little, too late.”
Unreported. http://opinions.kycourts.net/COA/2024-CA-001340.PDF
CHFS and Pendleton County Child Support Office v. Natoshia Perkins, 2024-CA-1542
Sometimes a family court’s heart is in exactly the right place, but the law won’t let it stay there. Perkins is one of those cases: a light but necessary reversal. The Pendleton County Family Court attempted to do the right thing by wiping out nearly $5,000 in child support arrears owed to the state after the mother completed her case plan, cooperated fully, and regained custody of her four children. The trial court reasoned that forcing payment would only undermine reunification and hurt the children.
But the Court of Appeals, bound by Stewart v. Raikes and its progeny, had no choice but to vacate. Once due, child support payments vest as fixed debts, and trial courts cannot forgive them. Even so, the panel praised the family court’s humane instincts and pointed out that on remand, a resolution could be fashioned—such as reducing the monthly arrearage payment—so that Mother can provide for her children without fear of being held in contempt.
Takeaway: The law regarding vested child support is rigid, but trial courts still have room to shape repayment in ways that protect families on their path to stability.
Unreported. http://opinions.kycourts.net/COA/2024-CA-001542.PDF
Criminal Tally
In this week’s Criminal Tally, it was a shutout in favor of the Commonwealth. [Insert sound of cell door slamming here if you are so inclined.] At any rate, the Court of Appeals is on a hot streak for the prosecutors. Will the National Guard be next?
The weekly score:
Cops 5
Robbers 0
Thanks for reading! Click here to read the previous Round Up.